Respondents Brief — Kleppe v. Sierra Club

Supreme Court brief1976

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IN THE

> Supreme Court of the United RODAK, JR..OLERK |

€ OCTOBER TERM, 1975

No. 75-552

THomaAs S. KLR, Secretary of the Interior, ET AL.,

‘ Petitioners,

SIERRA CLUB, ET AL.,

Respondents.

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, ET AL.,

Petitioners,

SIERRA CLUB, ET AL.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS

BRUCE J. TERRIS

SUELLEN T. KEINER

NATHALIE V. BLACK

1908 Sunderland Place, N.W.

Washington, D.C. 20036

Attorneys for Respondents

WILSON - Eres PRINTING Co.. INC. - RE 7-6G002 - WASHINGTON, D. C. 20001

TABLE OF CONTENTS

QUESTION PRESENTED——.——

STATEMENT OF THE CASE

SPREE ccnsinacdipemnsenenendemnentnbinteniiantememnenninesionen

Past and Pending Federal Actions in the

Northern Great Plains

Potential Development in the Northern Great

SUMMARY OF ARGUMENT — —

————ñ¶ñ p — —

II.

THE DEPARTMENT OF THE INTERIOR

HAS ADOPTED A POLICY OF PREPARING

REGIONAL ENVIRONMENTAL IMPACT

STATEMENTS WHEN SEVERAL FEDERAL

ACTIONS ARE BEING CONSIDERED IN-

VOLVING THE SAME GEOGRAPHIC RE-

GION AND HAS APPLIED THIS POLICY TO

COAL DEVELOPMENT IN 2 NORTHERN

GE ————— ——

THE DETERMINATION OF THE DEPART-

MENT OF THE INTERIOR TO PREPARE

REGIONAL ENVIRONMENTAL IMPACT

STATEMENTS IS CONSISTENT WITH THE

NATIONAL ENVIRONMENTAL POLICY

ACT AND THIS COURT’S DECISION IN

ROURERE” UAE chnsstisestinistiisinsicsinsastitinemiieatininininindsleaamnnesens

A. THE TIME IS RIPE FOR THE PREPARA-

TION OF A REGIONAL ENVIRONMEN-

TAL IMPACT STATEMENT

TABLE OF CONTENTS—Continued

B. THE NATIONAL ENVIRONMENTAL

POLICY ACT REQUIRES PREPARATION

OF COMPREHENSIVE ENVIRONMEN-

TAL IMPACT STATEMENTS WHEN

FEDERAL AGENCIES ARE TAKING A

NUMBER OF RELATED ACTIONS

1. The Language of the National Environ-

mental Policy Act and Its Legislative

History Show That Related Federal Ac-

tions Must Be Considered in a Compre-

hensive Environmental Impact State-

2. Numerous Federal Court Decisions Have

Held That the National Environmental

Policy Act Requires That Related Fed-

eral Actions Must Be Considered in a

Comprehensive Environmental Impact

8. The Council on Environmental Quality,

the Environmental Protection Agency,

and Other Federal Agencies Have Inter-

preted the NATIONAL ENVIRON-

MENTAL POLICY ACT to Require the

Preparation of Comprehensive Environ-

mental Impact Statements to Consider

Related Federal Actions

a. The Council on Environmental Quality

and Environmental Protection Agen-

— .

b. The Department of the Interior

c. Other, Federal Agencies

Page

8 8 8

;

TABLE OF CONTENTS Continued

C. THE NATIONAL ENVIRONMENTAL

POLICY ACT REQUIRES THE PREPARA-

TION OF A REGIONAL ENVIRONMEN-

TAL STATEMENT CONCERNING COAL

DEVELOPMENT IN THE NORTHERN

GREAT PLAINS BECAUSE OF THE

NUMBER AND CLOSE RELATIONSHIP

OF THE FEDERAL ACTIONS BEING

6 — sites

1. The Federal Actions Involved in Coal

Development of the Northern Great

Plains Are Related in a Manner Requir-

ing Preparation of a Comprehensive En-

vironmental Impact Statement

2. A Regional Environmental Impact State-

ment Is Necessary to Carry Out the Spe-

cific Requirements of Section 102 (2) of

the National Environmental Policy Act..

8. The Council on Environmental Quality

and Environmental Protection Agency

Have Concluded that the Preparation of a

Regional Environmental Impact State

ment Concerning the Northern Great

Plains Is Required by the National En-

vironmental Policy Act ..............................

III. NORTHEASTERN WYOMING, EASTERN

MONTANA AND THE WESTERN DAKOTAS

ARE THE APPROPRIATE REGION FOR A

REGIONAL ENVIRONMENTAL IMPACT

STATEMENT CONCERNING COAL DEVEL-

OPMENT IN THE NORTHERN GREAT

PLAINS

Page

TABLE OF CONTENTS—Continued

Page

IV. EVEN IF THE DEPARTMENT OF THE IN-

TERIOR’S DECISION TO DO ENVIRON-

MENTAL STATEMENTS ON SUBREGIONS

OF THE NORTHERN GREAT PLAINS COM-

PLIES WITH NEPA, FURTHER FEDERAL

ACTION MAY NOT BE TAKEN WITHOUT

PREPARATION OF — SUBRE-

GIONAL STATEMENTS ...............-...--.-.-. 108

CONCLUSION ...............-..-.. ; —

APPENDIX A — . — 1a

APPENDIX B — — 14a

——

rr A el

TABLE OF CITATIONS

CASES: Page

Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289

(1975) ~.........27, 32, 42, 43, 44, 45, 46, 54, 58, 59, 60, 62

Akers v. Resor, 339 F. Supp. 1875 (W. D. Tenn.

i — 100

Cady v. Morton, 527 F. 2d 786 (C.A. 9, 1975) ....24, 52, 53,

54, 60

Carolina Action v. Simon, 389 F. Supp. 1244 (D.C.

N.C. 1975), aff’d, 522 F.2d 295 (C.A.4,1975).... 100

Chelsea Neighborhood Assn’s v. U.S. Postal Serv-

ice, 516 F. 2d 378 (C.A. 2, 1975) 53

Committee for Green Foothills v. Froehlke, 5

ERC 1849 (N.D. Calif. 19733)))))3)) 100

Conservation Council v. Costanza, 398 F. Supp.

653, (E. D. N. C. 1975) r 57

Ecology Center of Louisiana v. Coleman, 515 F. 2d

r 62

Ely v. Velde, 451 F. 2d 1130 (C. A. 4, 197%) 100

Environmental Defense Fund v. Armstrong, 487

F. 2d 814 (C. A. 9, 1973) nonce cceccccccccecceeeeee 53

Environmental Defense Fund v. Corps of Engi-

neers, 470 F. 2d 289 (C. A. 8, 1977 92

Environmental Defense Fund v. Corps. of Engi-

neers, 325 F. Supp. 728 (E.D. Ark. 1971) .......... 100

Environmental Defense Fund v. TVA, 468 F. 2d

(C.A. 6, 1972722 100

Essex County Preservation Asen v. Campbell, 399

F. Supp. 208 (D. Mass. 1975) 100

Forty- Seventh Street Improvement Ass’n v. Volpe,

3 ELR 20162 (D. Colo. 1973))))))j)j 100

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

D r . 52, 53

Greene County Planning Board v. FPC, 455 F. 2d

412 (C. A. 2), cert. denied, 409 U.S. 849 (1972). 52, 100

Hanly v. Mitchell, 460 F. 2d 640 (C. A. 2, 1972) 60

Hanly v. Kleindienst, 471 F. 2d 823 (C. A. 2, 1972),

certiorari denied, 412 U.S. 908 (1973 91

TABLE OF CITATIONS—Continued

Page

Illinois v. Butterfield, 396 F. Supp. 632 (N. D. III.

1 56

Indian Lookout Alliance v. Volpe, 345 F. Supp.

1167 (S.D. Iowa 1972), modified, 481 F. 2d 11

GA. 4 % — K 53, 100

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

(C. A. 8, 1973) — 53, 61

Jicarilla Apache Tribe of Indians v. Morton, 471

FP. 98 1896 (GA. a SBGBD cccnscsnntiecneenen 61

Jones v. Lynn, 477 F. 2d 885 (C. A. 1, 19738) .......... 51

Monroe Conservation Council, Inc. v. Volpe, 472

F. 2d 692 (C. A. 2, 1972 92

Morningside-Lenoz Park Ass’n v. Volpe, 344 F.

Supp. 168 (BED. Ga. SOUR) ccccesccsccsensesenetmtnae 100

National Helium Corp. v. Morton, 455 F. 2d 650

G. A. 0 0 91

Natural Resources Defense Council v. Callaway,

IAE OO e———————ELEEEEE 54, 100

Natural Resources Defense Council v. Grant, 355

F. Supp. 280 (E. D. N. C. 197909 56

Natural Resources Defense Council v. Morton, 458

LI 50, 55, 87

Natural Resources Defense Council v. TVA, 367

F. Supp. 128 (E. D. Tenn. 1973) 63

Norwegian Nitrogen Products Co. v. United States,

III 99

Power Reactor Development Co. v. International

Union of Electricians, 367 U.S. 396 (1961) ....... 99

Prince George's County v. Holloway, 404 F. Supp.

VR) 8 x ee 57

Robinswood Community Club v. Volpe, 506 F. 2d

CO Pe | Ee 100

Scientists’ Institute for Public Information v.

AEC, 481 F. 2d 1079 (C.A.D.C. 1978) ................ 52

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

| ae ee 53, 61

val

TABLE OF CITATIONS—Continued

Page

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

1974) — 33, 61

Trout Unlimited v. Morton, 509 F. 2d 1276 (C. A.

D 53, 61

Udall v. Tallman, 380 U.S. 1 (1965) 99

Union Oil v. Morton, 512 F. 2d 743 (C. A. 9, 1975) 59

United States v. American Trucking Ass’n, 310

U.S. 534 (1940) 99

United States v. Zucca, 351 U.S. 91 (1956) 99

United States v. SCRAP, 412 U.S. 669 (1973)... 112

Warm Springs Dam Task Force v. Gribble, 417

B A 100

Zuber v. Allen, 396 U.S. 168 (1969) 1 99

STATUTES:

Clean Air Act of 1970

b * 99

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

EE ....passim

Section 101 (a) 2 — — 48, 86, 98

r . 48

Section 102 (24 on ....8, 48, 87

r 87

Section 102 (2) C 2 — 3, 28, 29, 42, 48, 49,

56, 87, 92, 110

Te 49, 89

D 49, 89

Section 102 (2) C (iii) 6 49, 90, 91

Section 102 (2) C(iv) G 89, 91

ä — 89

ä 3, 28, 49, 91, 92

r — 48, 87

42 U.S.C. 4321 (a 86

42 U.S.C. 4331 (a 48

42 U.S.C. 4331 (b) 48

TABLE OF CITATIONS—Continued

42 U.S.C. 4332 (2) (Aa)

42 U.S.C. 4332 (2) (8) —— *

42 U.S.C. 4332 (2) (%

4 90 0008

42 U.S.C. 4344(3ͤĩĩͤß5“ 7 —

929.00

49 U.S.C. 15 ........

SS S838 288

LEGISLATIVE MATERIALS:

Hearing on Federal Leasing and Disposal Policies

Before the Senate Committee on Interior and

Insular Affairs, 92d Cong., 2d Sess. (1972). 84, 87, 105

Hearings on Coal Leasing in the Northern Great

Plains, Before the Subcommittee on Minerals,

Materials, and Fuels of the Senate Committee on

Interior and Insular Affairs, 93d Cong., 2d Sess.

— 18, 19, 24

Hearings on National Environmental Policy Act

Oversight, Before the Subcommittee on Fisheries

and Wildlife, Conservation and Environment,

of the House Committee on Merchant Marine

and Fisheries, 94th Congress, Ist Sess.

(1975) 33, 34, 35

Hearings on the Administration of the National

Environmental Policy Act Before the Subcom-

mittee on Fisheries and Wildlife Conservation,

of the House Committee on Merchant Marine

and Fisheries, 92d Cong., 2d Sess. (1972). 64, 70, 77, 79

Joint Hearings on S. No. 94-18, before the Senate

Committees on Interior and Insular Affairs and

Public Works, 94 Cong., Ist Sess. (197555 - 75

Oversight Hearings on Federal Coal Leasing Pro-

gram, Senate Committee on Interior and Insular

Affairs, February 16, 1976..13, 27, 39, 40, 59, 60, 88, 97

S. Rep. No. 91-296, 91st Cong., Ist Sess. 5, (1969) 47

TABLE OF CITATIONS—Continued

REGULATIONS 9

40 C. F. R. 1500.6 8 28

r 63

40 C. F. R. 1500.6 (b) 78

40 C. F. R. 1500.6 (e) 91

40 C. F. R. 1500.6 (d) (1) 63, 64, 73, 96

40 C. F. R. 1500.8 (a) (4) 90

36 Fed. Reg. 19344 65

35 Fed. Reg. 4247 98

36 Fed. Reg. 7724 63

38 Fed. Reg. 19185 69, 70

38 Fed. Reg. 20551 63, 78, 91

38 Fed. Reg. 20552 63, 64, 73

38 Fed. Reg. 20554 90

39 Fed. Reg. 13001 72

39 Fed. Reg. 35238 71

40 Fed. Reg. 16817 72

Bureau of Land Management Manual, § 2.218. 81

* of Interior Manual, Part 516, Chapter

Forest Service Manual

8 8411.43 a * 5 70

8 8411.44 * 70

MISCELLANEOUS:

Billings Gazette, March 23, 1974 19

Bureau of Mines Information Circular 8690, Long-

Distance Coal Transport: Unit Trains or Slurry

Pipelines (1975) 93

Bureau of Reclamation, Appraisal Report on Mon-

tana Wyoming Aqueducts (1972) 23, 80, 82

Council on Environmental Quality, Review of Im-

lementation of the National Environmental

Policy Act, Questions and Outline, Responses of

Army Corps of Engineers 70, 71

Department of Commerce 72

TABLE OF CITATIONS—Continued

Department of Interior 66, 67

1 67

National Park Servicte

Bureau of Reclamation ..........................

Bureau of Outdoor Recreation

Council on Environmental Quality, Memorandum

to the Heads of Agencies, November 26, 1975..

Council on Environmental Quality Memorandum

to the Heads of Agencies, February 10, 1976 _..

Council on Environmental Quality, Staff Memo-

randum, December 28, 1973 ,

Environmental Quality, 6th Annual Report of the

Council on Environmental Quality, 1975

Executive Order No. 11514, 35 Fed. Reg. 4247

— —„—

Montana Coal Task Force, Situation Report on

Coal Development in Eastern Montana, (1973)

Montana Environmental Quality Council, First

Annual Report (19727

National Academy of Sciences, Rehabilitation of

Western Coal Lands (1973) —......

National Public Hearings on Power Plant Compli-

ance with Sulfur Oxide Air Pollution Regula-

a en

North Central Power Study, Phase I (1972

Sulfur Oxide Control Technology Assessment

Panel, Environmental Protection Agency, Final

Report on Projected Utilization of Stack Gas

Cleaning Systems by Steam-Electric Plants

fo)

Tabulation of Coal Reserves, Environmental Policy

eee. x

The Coal Future: Economie and Technological

Analysis of Initiatives and Innovations to Secure

Fuel Supply Independence, National Science

Washington Post, December 1, 1975, p. a-I

16, 19

aoe

Ee i Ti te tein eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-552

THOMAS S. KLEPPE, Secretary of the Interior, ET AL

Petitioners,

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, ET AL.,

Petitioners,

SIERRA CLUB, Er AL.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS

QUESTION PRESENTED

The question originally presented in this Court was:

whether the National Environmental Policy Act

(NEPA) permits federal agencies to take numerous

major federal actions related to the massive develop-

ment of coal resources in the Northern Great Plains

without first preparing and considering a regional

environmental impact statement related to the cumu-

lative environmental impacts of federal actions

within the entire region.

Since this Court granted the writs of certiorari, the

Department of the Interior has adopted the policy of

preparing regional environmental impact statements pur-

suant to the National Environmental Policy Act when it

proposes or takes related actions, in a particular geo-

graphical area and has applied this policy to coal develop-

ment in the Northern Great Plains. As a result, respond-

ents submit that the original question is no longer in

controversy and that the question presented is as follows:

Whether the appropriate geographical area for prep-

aration of a regional environmental impact statement

under the National Environmental Policy Act is the

entire Northern Great Plains region rather than

smaller portions of that region.

STATEMENT OF THE CASE

Procedural Background

Respondents’ brought suit on June 13, 1973, 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

* Respondents are the Sierra Club, National Wildlife Federation,

Northern Plains Resource Council, League of Women Voters of

Montana, Montana Wilderness Association, Montana League of Con-

servation Voters, and League of Women Voters of South Dakota.

Fort Union and Powder River formations located in

eastern Montana, northeastern Wyoming, western North

Dakota, and western South Dakota—the Northern Great

Plains region. The federal actions which respondents

sought to enjoin included issuance, grant or approval of

coal prospecting and exploitation permits, coal mining

leases, coal mining plans, water options and contracts,

diversions of water from and placement of structures in

navigable waterways, and permits for rights-of-way.

Respondents claimed that the federal petitioners had

violated, and were continuing to violate, Sections 102 (2)

(A), (C) and (D) of the National Environmental Policy

Act (NEPA), 42 U.S.C. 4332 (2) (A), (C) and (D), by

taking these actions related to coal development in the

Northern Great Plains region without preparing and

considering a comprehensive environmental impact state-

ment analyzing the cumulative effect of these actions on

a region-wide basis, and without preparing and consid-

ering systematic interdisciplinary studies and a study

of appropriate alternatives.

The district court granted the motions of the federal

petitioners and the industry petitioners who had inter-

vened (hereafter AEP petitioners) for summary judg-

ment on February 14, 1974. The court concluded, inter

alia, that since the federal petitioners had not developed

an overall regional program or plan for their numerous

actions related to coal development in the Northern Great

Plains, NEPA did not require preparation of a compre-

hensive, regional environmental impact statement. Fed.

Pet. App. D pp. 98A-99 A.“

Fed. Pet. App.” refers to the appendices contained in the Peti-

tion for a Writ of Certiorari filed by the federal petitioners; “Br.

Opp. App.” refers to the appendices attached to the Brief of Re-

spondents in Opposition; “AEP Br. App.” refers to the appendix

attached to the Brief for Petitioners American Electric Power

System, et al; “App.” refers to the appendix prepared for this

Court and “Ct. of Appeals App.” refers to the appendix prepared for

the court of appeals and part of the record now before this Court.

During the pendency of the suit in the district court,

the Secretary of the Interior had announced a coal leas-

ing policy which would permit federal coal leasing only

under specified, limited conditions pending review and

analysis of federal coal leasing procedures. Affidavit of

Secretary Morton, App. 120-121. On June 17, 1974, fol-

lowing the filing of an appeal from the decision of the

district court, the Court of Appeals for the District of

Columbia Circuit (Judges Leventhal and Tamm) denied

respondents’ motion for an injunction pending appeal

because the requested injunction was too broad. However,

the court noted that “the spectre of significant harm to

large tracts of valuable wilderness still remains” and

that permitting coal development activity in the region

could allow “consequential and perhaps irreversible action

to be taken.” The court therefore urged that “substantial

restraint be exercised in the granting of authority for

coal development activity pending a disposition of this

case on its merits.” The court further granted respond-

ents’ motion to expedite the appeal. Br. Opp. App. A,

pp. 2a-3a.

After a sua sponte remand to the district court to up-

date the record and answer certain factual questions

(Fed. Pet. App. C, pp. 81A-88A; Fed. 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 rail-

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

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

sion on the merits of the case. It noted that numerous

actions had already been taken by federal officials in-

volving coal leases and water options to allow coal de-

velopment in the Northern Great Plains and that hun-

dreds of applications for coal leases and permits, water

i mining plans, and right-of-ways were pending.

Fed. Pet — A pp. 5A, 8A-13A. While at the time

of the court of appeals’ decision the Secretary had an-

nounced a moratorium on further coal leasing except on

a limited basis pending completion of the Northern Great

Plains Resources Program study and of the national Coal

Programmatic environmental statement (id. at 6A-8A),

the court was nonetheless aware of the activities of other

federal agencies in the region (id. at 8A), of the loop-

holes” in the announced restrictions which would allow

further coal development in spite of the apparent mora-

torium (id. at 9A-11A), and of the likelihood in the near

future of a “flood of applications” for mining leases,

mining plans, rights-of-way over federal lands, navigable

waterways, and national forests, and for water rights

throughout the Northern Great Plains (id. at 13A) . Once

the pending studies were completed, “the massive devel-

opment of the Northern Great Plains will begin. Ibid.

Looking at these federal activities, the court of appeals

reached two major conclusions. The first was that the

cumulative effect of the many federal decisions, inter-

related in terms of purpose, geography, and environ-

mental impact, amounted to a de facto federal program

for coal and energy development. The court specifically

rejected the argument of the federal petitioners, ‘ that 4

statement is required only when the Government has it-

self designated the activities at issue a ‘program.’ Id.

at 28A. The court refused to allow the application of

NEPA to depend on the label chosen by the government:

„I wihether a comprehensive impact statement is required

cannot turn simply on whether the agency has denom-

inated a comprehensive series of actions a ‘program.

Ibid,

The second conclusion was that the government itself

had for some years treated the Northern Great Plains

region as a discrete area in terms of coal development,

had acknowledged the need for comprehensive study and

planning in the area, and had recognized the need for the

federal government to control development. Id. at 34A-

38A. The court reviewed the numerous statements of high

federal officials calling for comprehensive regional de-

velopment of the Northern Great Plains and the several

studies of the region which had been undertaken for this

purpose. Ibid. The most recent, and most comprehensive,

study undertaken by the Department of the Interior, the

Northern Great Plains Resources Program, had been

initiated to avoid “engaging in single-purpose studies

which are incapable of developing comprehensive infor-

mation or by taking piecemeal actions which restrict our

future options.” Memorandum of Secretary Morton, June

30, 1972 (App. 130), quoted at Fed, Pet. App. A, p. 6A.

The court of appeals concluded that the combination of the

government’s own treatment of the region with the

multitude of federal actions there, past and anticipated,

resulted in a de facto program and a regional major

federal action within the meaning of NEPA. Fed. Pet.

App. A, p. 39A.

Having determined the need for an environmental

statement and its necessary scope, the court of appeals

then turned to the next question, that of the appropriate

timing. Id. at 42A. The court said that preparation

of a statement must precede, or at least accompany,

preparation of the recommendation or report on the pro-

posal, so that the agency may have the opportunity to

assess the environmental impact of its plans before com-

mitting itself, even tentatively, to action.” Id. at 42A.

The court then set out four criteria for determining

whether the federal action at that time was ripe for

preparation of an impact statement. Id. at 43A. Two of

these, the availability of information on the effects of

implementing development and the severity of envir-

onmental effects caused by such development, the court

concluded were satisfied. However, the immediate role

of the government was not so clear, in light of the

moratorium established by Secretary Morton and the

imminent completion of the Northern Great Plains Re-

sources Program. Therefore, the court remanded the case

to the district court to allow the federal petitioners the

opportunity, after issuance of the Northern Great Plains

Resources Program report, to decide upon the role they

would play in the region and whether they must prepare

a comprehensive environmental statement. Jd. at 47A-

49A. Thus, the question of the appropriate time for an

impact statement was left to depend on the decision con-

cerning further action which the government would make.

At the same time as it decided the merits, the court of

appeals continued the temporary injunction of January

8, 1975, in order to “preserve, in large part, the status

quo” pending the federal petitioners’ decision whether to

prepare a comprehensive impact statement for the North-

ern Great Plains. Jd. at 50A-51A. On November 7, 1975,

the court of appeals denied thé motions of the federal

and AEP petitioners to dissolve the temporary injunc-

tion and, at the same time, remanded to the district

court respondents’ motion to modify that injunction in

order to prevent approval of the proposed mining plan

for the Amax mine in the Eastern Powder River Coal

Basin of Wyoming. Br. Opp. App. B, pp. 4a-5a. On

November 11, 1975, the Secretary of the Interior decided

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

vember 14, 1975, the district court enjoined that approval

only insofar as it extended beyond a period of two years

or the final resolution of this litigation. Br. Opp. App.

C, pp. 6a-Ta.

By order entered January 12, 1976, this Court granted

the petitions for writ of certiorari and the motion filed

by the federal petitioners for a stay of the injunction

entered by the court of appeals.

Factual Background

Present Character of the Northern Great Plains. One

of the world’s largest known coal basins, the Fort Union

and Powder River coal formations, underlie large areas

of northeastern Wyoming, eastern Montana, western

South Dakota, and western North Dakota.“ The federal

government owns or controls more than 60 percent of the

estimated total coal reserve in the Northern Great Plains

region.“ In addition to the reserves under direct federal

control, considerable coal is found on Indian lands which

may be leased only with the approval of the Secretary of

the Interior. Further, because of the checkerboard pat-

tern of surface and subsurface ownership throughout

much of this region, decisions of the federal government

to lease or not lease will often effectively determine the

future of adjacent private lands as well. The federal

government thus has control over most of the coal re-

serves of the region, regardless of ownership.“

Final Environmental Impact Statement: Proposed Federal Coal

Leasing Program, p. 2-48 (1975) (hereafter Coal Programmatic

EIS).

Effects of Coal Development in the Northern Great Plains, Re-

port of the Northern Great Plains Resources Program, p. 8 (1975)

(hereafter NGPR Program Report). A copy of this report has been

lodged with the Clerk of this Court. This report, which was earlier

considered to be an interim report, was prepared over a period of 3

years by a staff consisting of officials from a variety of federal

agencies. The final report will be not prepared because Secretary

Kleppe abolished the program in January 1976.

‘The Bureau of Land Management of the Department of the

Interior states that “the Federal Government influences the devel-

opment of nearly 80 percent of ali western coal resources.” Program

Decision Option Document, The Proposed Federal Coal Leasing Pro-

gram, December 16, 1975, p. 3 (hereafter PDOD). A copy of the

PDOD has been lodged with the Clerk of this Court.

The Northern Great Plains region presently has very

little industry and a sparse population.* Much of the

area is isolated from main highways or railroads and

most of the present population derives its livelihood from

ranching and farming. The region is well known for its

abundant wildlife and fish and it has attracted increas-

ing numbers of people who admire the beautiful scenery

and utilize the superior opportunities for hunting, fish- ©

ing and other outdoor activities.’

The present character of the Northern Great Plains

region is described in the NGPR Program Report (pp.

45-47, 99):

Most of the portion of the NGP area encompassed

by this study is characterized by broad horizons of

open, rolling terrain.

It is a country of wind. Wind that quickly dries soils

and drifts snow during the blizzardy winters. It

is a dry country; only 2 percent is covered by the

waters of lakes and streams. Annual precipitation

ranges from 10 to 26 inches. Much of plains region

only receives 12 to 16 inches of precipitation in a

year. * * [Out of 37 years, 1 had been humid,

1 moist subhumid, 5 dry subhumid, 25 semiarid, and

5 arid. The arid and some of the semiarid years are

probably too dry to permit revegetation of disturbed

land without irrigation.

The NGP is a land of big cattle and wheat ranches.

* * * Seventy percent of the area is pasture and

range; 26 percent is cultivated for wheat, barley,

flax, rye, oats, corn, alfalfa, and sugar beets, but

„ NGPR Program Report, p. 45.

Bureau of Land Management, Powder River Basin Resources

— Report (May 1973), p. 5 (hereafter Powder River Basin

port.

“wheat and meat” are the main agricultural prod-

ucts. In 1971, a little less than one-twelfth of 1'l

U.S. wheat was produced in the region. Less than

3 percent of the land is irrigated.

There are few people, only 4.4 per square mile, com-

pared with Iowa and Ohio having 52 and 263 per-

sons per square mile respectively. * * * There are

Indians: the Sioux, the Northern Cheyenne, Crow,

Assiniboine, Gros Ventre.

Some 2.5 million acres of the 92 million acres that

comprise the NGP study are inventoried as “wild

lands,” some have potential for inclusion in the Na-

tional Wilderness System.

The big game of the NGP are another resource of

national significance. * * * Hunting is a part of the

NGP culture, with many nonresidents participating

in the activity. * * The high quality of hunting

found in the NGP is directly related to the relatively

low pressure of hunting on game populations and

the millions of acres of relatively unaltered land sur-

face that provides suitable habitat. * * *

Other kinds of recreationists visit the NGP as they

move to areas on its fringes, such as Yellowstone

National Park or the Black Hills. The Badlands in

Theodore Roosevelt National Memorial Park, for ex-

ample, attract large numbers of visitors to its unique

scenic features.

All these resources are important to many more peo-

ple than just those of the region. They are national

resources, and many are the last vestiges of what

this country once was in its untouched natural state.

The NGP region is relatively free of large-scale air

pollution problems. Extremely clean air is a trade-

mark. Visibilities of 50 miles or more are common-

place. “Big Sky” is more than the motto of a single

State—it is a concept treasured by all people who

live in the region and one quickly grasped by visitors.

The court of appeals well summarized the present

status and the potential effects of intensive coal develop-

ment on this region (Fed. Pet. App. A, p. 45A):

Briefly put, a region best known for its abundant

wildlife and fish, and for its beautiful scenery, a re-

gion isolated from urban American, sparsely popu-

lated and virtually unindustrialized, will be con-

verted into a major industrial complex.

Past and Pending Federal Actions in the Northern

Great Plains. The presence of enormous amounts of

coal in the Northern Great Plains region, much of it

close to the surface and therefore readily removed by

surface mining techniques, concentrated in one geolog-

ically definable area, has attracted a rush to use this

resource for highly intensive energy development. The

federal government has already undertaken a large num-

ber of actions in the Northern Great Plains area in fur-

therance of this coal and energy development. Fourteen

federal coal leases covering 90,000 square miles, issued

prior to the effective date of NEPA, are presently operat-

ing.“ Since that effective date, January 1, 1970, 29 coal

leases, covering 137,802 acres, have been issued; 97 pros-

pecting permits, which give the prospector the automatic

right to obtain leases so long as “commercial quantities”

of coal are found, covering 685,280 acres have been

of coal are found and which cover 685,280 acres have been

granted and water-opt on contracts for 601,000 acre-feet

* Fed. Pet. App. A, p. 5a, note 4.

Answers of Secretary Morton to Plaintiffs’ Interrogatories, Ct.

of Appeals App. 49-50; Supplemental Answers of Secretary Morton,

authorizing strip mining had been approved prior to the

court of appeals’ decision and a fifth, for an extension

of the Amax mine in northeastern Wyoming, was ap-

proved in November 1975.“ Subsequent to the action of

this Court staying the injunction imposed by the court

below, four more mining plans were approved in Feb-

ruary 1976.”

The Department of the Interior has recently announced

that it will cease granting coal prospecting permits which

give the right to a lease. However, the Department pres-

ently has before it some 80 preference right lease appli-

cations based on existing permits which the Secretary

states “must be acted upon.” In addition, as of Novem-

ber 1974, there were 47 outstanding prospecting permits,

covering some 3 billion tons of coal.“ There are also pend-

ing some 42 competitive lease applications, 19 applications

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

option contracts, and two applications for permits for

structures in navigable rivers. The Department of the

Interior has stated that it has a list of “over 80 parties

Ct. of Appeals App. 149-156; Exhibit 1 to Federal Defendants’ Mo-

tion for Summary Judgment, Ct. of Appeals App. 173-188.

10 Fed. Pet. App. A, p. 10a, note 13.

* Br. Opp. App. C, p. 7a.

12 Fed. Br. 21.

18 Department of the Interior News Release, January 26, 1976,

AEP Br. App., pp. 2a, 7a.

1% Fed. Pet. App. A, p. 12A.

1 Testimony of Secretary Kleppe before the Subcommittee on

Minerals, Materials and Fuels of the Senate Interior Committee,

p. 9 (see App. B, p. 9a below).

16 App. 159.

* Fed. Pet. App. A, pp. 8A-9A, including notes 7, 8 and 9, 12A-

13A.

that are interested in obtaining Federal coal leases, pri-

marily in the Northern Great Plains.“

Potential Development in the Northern Great Plains.

reflecting a different rate of energy development in the

area. The middle scenario, based on projections made by

the Department of the Interior in 1972, envisions by the

year 2000 the establishment of 24 export coal mines, 25

electric power plants with a capacity of 20,000 megawatts,

and 16 synthetic natural gas plants.“ Total coal produc-

tion will be 362 million tons, which is over half of total

present production in the entire country.” The consump-

tion of water, a crucial consideration in this semi-arid

to arid area, ranges from a low use estimate of 139,000

acre feet/per year to a high use estimate of 843,000 acre

feet for the moderate projection.“ The conservatism of

these estimates is shown by the fact that, as of August

1975, the Bureau of Mines already listed 34 specific

mines and 20 specific coal conversion plants proposed to

be established by 1980.“ In addition, as of October 1974,

18 Answers of the Secretary to Questions Submitted by the Sub-

committee on Minerals, Materials and Fuels of the Senate Interior

Committee in connection with the hearing held February 16, 1976,

Answer #77 (hereafter Answers of the Secretary ).

1° NGPR Program Report, p. 40.

2° Ibid; Coal Programmatic EIS, p. 1-25.

21 NGPR Program Report, p. 41.

22 Subcommittee to Expedite Energy Development, U.S. Bureau of

Mines, “A Listing of 43 Proposed, Planned or Under Construction

Energy Projects In Federal Region VIII (August 1975) (hereafter

“Bureau of Mines Listing“).

there were already industrial water options in effect for

over 700,000 acre feet, and option applications for 2,529,-

000 acre feet per year.”

Thus it seems more likely that the estimates made in

the high scenario are more realistic although even they

may be too low.“ This scenario envisions by 2000 the

establishment of 64 export mines, 25 power plants with a

capacity of 20,000 megawatts and 41 synthetic natural

gas plants. The range of water consumption is 343,000

acre feet to 1,593,000 acre feet per year.“

Other related developments are also expected in the

Northern Great Plains. In order to provide the necessary

quantities of water in this semi-arid region, the federal

petitioners have proposed construction of a system of

aqueducts, pumping plants, reservoirs and dams to divert

water and convey it to the coal fields and power plants.”

The electrical power generated by the power plants will

be transmitted to major population centers over ultra-

high voltage transmission lines.“ Railroads, highways,

water and slurry pipelines * will also be built to trans-

port the coal and serve the additional population.”

28 NGPR Program Report, p. 71.

2 See, e.g., id. at 44, estimating expected coal production at just

under the high scenario figure.

25 Jd. at 40.

2 Jd. at 41.

2? Jd. “Foreword”; Bureau of Reclamation, Appraisal Report on

Montana Wyoming Aqueducts (1972) (hcreafter Aqueduct Report).

28 North Central Power Study, Phase I (1972), p. 19.

2° The Bureau of Mines anticipates that approximately 1836 miles

of slurry pipelines will be completed between 1975 and 1982. Bureau

of Mines Listing, supra.

0 Montana Coal Task Force, Situation Report on Coal Develop-

ment in Eastern Montana (1973), p. 65; Aqueduct Report, pp.

27-28.

Estimates of the population increase in the region

range from more than 245,000 new residents for the en-

tire region (for the middle scenario of the NGPR Pro-

gram)" to 300,000 to 400,000 in eastern Montana alone.”

The lower estimates will mean an increase of over 30 per-

cent in the next decade in contrast to the population

growth of 1% during the decade of the 60s." For the

State of Wyoming alone, the State has estimated that

population in the northeastern portion of the State, where

the coal development is occurring, will expand from

56,100 in 1970 to 143,755 in 1990, a growth of 156 per-

cent by contrast with a past average annual growth from

1950 to 1970 of slightly more than 1 percent.“ The same

study shows that in Campbell County, where many fed-

eral coal leases are located, the population will increase

from 12,957 in 1970 to 56,969 in 1990, an increase of

more than 400 percent in just twenty years.“ The huge

population increases will make it necessary to build new

housing and expand the region’s health, education, com-

munication, recreation, sanitation, cultural, commercial,

fire and law enforcement facilities.“ The net result will

be to change the region from an agrarian to an urban-

industrial economy. The coal development of the North-

ern Great Plains region may well be the most massive

industrial development of a rural area within a short

period of time which has ever occurred in this country.

* NGPR Program Report, pp. 40, 120.

*? Montana Environmental Quality Council, First Annual Report

(1972), p. 145 (hereafter Montana Environmental Council Report).

% NGPR Program Report, p. 120.

Powder River Basin Report, p. 12 and Figure 4.

85 Jd., Figure 5.

Id. at 10; Montana Environmental Council Report, p. 145; Aque-

duct Report, p. 26; NGPR Program Report, p. 129.

Environmental Impacts. The environmental impact of

this vast coal development will be correspondingly enorm-

ous. The projected development of the region’s coal re-

sources will permanently destroy much of the region’s

environment by converting it into a major industrial com-

plex. The large strip mines, mine-mouth electric and coal

gasification plants, railroads, aqueducts, transmission

lines and other installations related to this coal develop-

ment will cause an enormous, adverse impact on land

use, water supply, water and air quality, wildlife, aesthet-

ics 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 1,000 square miles during the development’s pro-

jected 35-year duration—to more than 3,000 square miles

in northeastern Wyoming alone.“ Federal and state stud-

ies show that no strip-mined land has yet been fully re-

claimed and that the region’s climate, low precipitation

and thin topsoil make it extremely likely that much of it

will not be successfully reclaimed.” A federal inter-agency

task force has stated that “acceptable reclamation of

these semi-arid lands has yet to be demonstrated.“ The

Bureau of Land Management has recognized the adverse

* Malde, U.S. Geological Survey, Denver, Colorado, Letter to

Director, U.S. Geological Survey, April 24, 1972, pp. 2-3; Bureau

of Land Management, Powder River Basin Report, p. 9.

Montana Coal Task Force, Coal Development in Eastern Mon-

tana, p. 33 (1973) (hereafter Montana Coal Task Force Report) ;

Montana Environmental Council Report, p. 143 (1972).

0 Sulfur Oxide Control Technology Assessment Panel, Final Re-

port on Projected Utilization of Stack Gas Cleaning Systems by

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

environmental impacts of this coal development in the

Powder River basin in Wyoming: “

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 prob

lems than the ecological damage of strip mining it-

self.

C. Adverse Impacts That Cannot Be Avoided:

The Overall Impact: The total impact of en-

abling the proposed railroad line for coal devel-

opement will transform large areas of the Pow-

der River Basin into an abnormal, imbalanced

ecosystem. Both plant and animal species, in dis-

turbed areas will be either eradicated completely,

displaced, or temporarily eliminated. Air and

water quality will be lowered by material car-

ried in suspension. The visual and noise pollu-

tion will continue until the energy resources are

depleted. It is doubtful that the human impact

as mentioned under impacts can be completely

mitigated.

% Bureau of Land Management, Burlington-Northern Inc. Envi-

ronmental Analysis Record: Proposed Railroad, Douglas to Gillette

Wyoming (August 1973), pp. 2, 5, 7-8 (hereafter Burlington-North-

ern Environmental Analysis).

Another report of the Bureau of Land Management has

found:

Mining activities may, particularly in the breaks

areas, trigger large scale movements of fragile soils.

The thin productive soil mantle which maintains the

vegetative cover in many areas will be degraded.

Removal of natural vegetative cover in strip mine

operations may be irreversible. The most sophisti-

cated reclamation procedures could not replace the

natural soil structure nor would reseeding come

close to duplicating the natural ecological composi-

tion.

In addition, a study of the Department of Agriculture

has stated even more emphatically: *

The impacts of strip mining on the soil of this area

by current mining methods would be complete de-

struction.

Strip mining of these lands by the currently used

mining methods and machinery would destroy seven

of the existing ecosystems in the are.

There is currently no technical nor projective evi-

dence that rehabilitation of these ecosystems can be

assured after strip mining.

It is doubtful that the native grazing lands can be

reestablished.

In March 1974, the Department of the Interior told Con-

gress, in response to questions about the rehabilitation of

lands which have been strip mined, that “we must admit

we cannot fully restore total ecosystems with today’s

technology..

«1 Powder River Basin Report, p. 10.

«2 Forest Service, Environmental Analysis Report, Request for a

Competitive Coal Lease: Custer National Forest, pp. 49, 61, 68.

«3 Answers of Department of the Interior to Questions of the Sub-

committee on Minerals, Materials, and Fuels of the Senate Commit-

The region’s water supply will also be seriously af-

fected. A study of the National Academy of Sciences has

found:

The potential environmental impact of water usage

implied by the scale of surface mining operations

combined with proposed energy conversion projeets

in the western region is staggering. * * * Such a di-

version represents a significant fraction of the major

river flow in the project region and could well result

in very substantial environment. I impacts over large

areas of watershed.

More recently in 1974, Governor Judge of Montana stated

that the industrial demands for water from the Yellow-

stone River relating to coal development already exceed

the amount projected to be needed by the year 2000, that

more requests are expected, and that this demand will

leave no additional water available for agricultural uses.“

Ground water supplies will be seriously affected by the

removal of coal formations which serve as the region’s

principal aquifers.“ The National Academy of Sciences

has concluded that “surface mining activities may dis-

rupt ground water flow patterns and interrupt traditional

sources of water supply. These direct and indirect conse-

quences may be far more important than the ability to

rehabilitate the actual site of the mining and should guide

decisions regarding regional development.“

tee on Interior and Insular Affairs, Hearings on Coal Leasing in

Northern Great Plains, March 13, 1974, Answer to Question 14.

National Academy of Sciences, Rehabilitation of Western Coal

Lands (1973), pp. 22-23.

s Billings Gazette, March 23, 1974.

Montana Environmental Council Report, pp. 143-144.

National Academy of Sciences, pp. 22-23.

Water quality in the re ion will be degraded. Toxic

mining spoils threaten to pollute ground water supplies.“

Strip mining promotes erosion and increases the sedi-

mentation of streams.“ The Bureau of Land Management

has concluded: *

Watershed impacts of mining will have major ef-

fects on the basin’s hydrologic system. The Powder

River, the major drainage, can’t under present con-

ditions flush its sediments.

Similarly, once the proposed coal-burning power plants

begin operation at their enormous generating capacity,

the region’s air quality—now almost pure and containing

little industrial pollution—will be seriously degraded.”

There will be other major environmental impacts as

well. The Bureau of Land Management has found that

serious damage to wildlife will occur: *

The modification of wildlife habitat resulting from

concentrated development and human activity will

affect virtually all wildlife species to a certain de-

gree. For some the effects could be serious.

Another Bureau of Land Management report notes that

“(bJjoth plant and animal species, in disturbed areas will

be either eradicated completely, displaced, or temporarily

eliminated” and that “visual and noise pollution” will

result.“

«8 NGPR Program Report, pp. 91-92; Montana Environmental

Council Report, p. 144.

% NGPR Program Report, p. 91; Montana Coal Task Force Report,

p. 51.

5° Power River Basin Report, p. 10.

51 See, e.g., Final Environmental Impact Statement, Eastern

Power River Basin, p. I-647a.

52 Power River Basin Report, p. 10.

58 Burlington-Northern Environmental Analysis, p. 7.

The increase in population will have enormous environ-

mental effects. The Bureau of Land Management has

found as to this impact in the Powder River Basin: “

Major ecological, economic and social systems will be

definitely affected by the scale of anticipated develop-

ment in the basin. Most all present uses, resources,

municipalities, and even the general way of life will

be forced to change. |

8 * * 0

The traditional life style of many ranchers will be

violently disrupted. Most land-owners may be com-

pelled to sell. It is unlikely that these original opera-

tors will resume the livestock operations after min-

ing has taken place. There is a great danger in tem-

porarily changing an agricultural economy to a boom

type of economy based on mining. The result may be

an inability to recover and return to a successful

agricultural base.

The Bureau has further confirmed the seriousness of this

impact: *

The resultant boom with its enormous population

pressures may cause more human resource problems

than the ecological damage of strip mining itself.

A Montana state study has found: *

The increased tax base is often temporary in the

case of coal mining and coal-related industry. Unless

reclamation is unusually successful and the land is

restored to a productive condition, strip mining de-

stroys the base: when the coal is depleted and the

power companies move their plants closer to new

fuel supplies, spoilbanks have little tax value. The

present standard of living in the Appalachian coal

Powder River Basin Report, p. 10.

Burlington-Northern Environmental Analysis, pp. 7-8.

Montana Coal Task Force Report, p. 19.

fields demonstrates the long-range economic impact

of indiscriminate mining. The coal and power com-

panies have departed, leaving the people with no jobs

and the government with nothing to tax. With ex-

haustion of Montana’s coal reserves, a similar situa-

tion would almost certainly develop: The lifetime of

proposed generating facilities for Montana coal de-

velopment is estimated to be about 30 years.

The Bureau of Land Management has said that “boom

town” development in the region has already become

apparent:

A local social psychologist calls this the Gillette syn-

drome” after a local boom town. This is a social sys-

tem of higher rewards and greater pains that ac-

company an industrial boom. It includes the three

A’s: alcohol. accidents and absenteeism, as well as the

three D’s: divorce, delinquency and depression. These

results become social costs and are very significant

in both terms of human misery and dollars. For ex-

ample, Gillette, Wyoming with 8,000 people during

a four year boom period averaged one suicide per

week; this is 10 times the national average. This

town also has one of the highest delinquency rates,

high school dropout rates and divorce rates in the

Nation.

The Northern Central Power Study was initiated in

1970 by the Department of the Interior in order to:“

investigate the potential of electric power in the north

central United States. The geographic scope of the

study included all or portions of twelve states and

minor portions of three other states.

This study was terminated in 1972 after publication of a

Report on Phase I of the study.“ The Department of

r Powder River Basin Report, p. 11.

588 Affidavit of Secretary Kleppe, App. 190.

% North Central Power Study, Report of Phase I, Volume I.

the Interior also suspended in 1972 a study it had under-

taken to examine “the availability of water resources in

southeastern Montana and northeastern Wyoming for the

development of the vast coal resources in the region,” “

The district court found that the North Central

Power Study was evidence of efforts by the Department

of the Interior “to investigate the potential for coordi-

nated development of electric power supply in the north

central United States.“ The district court found that

the Montana-Wyoming Aqueducts Study was evidence of

efforts by “the Department of the Interior to control de-

velopment of coal on a national basis, including the

Northern Great Plains.” *

In June 1972 then Secretary Morton initiated a study

of the Northern Great Plains region, pointing out that:

The vast reserves of coal in the Fort Union Region

of Montana, North Dakota, South Dakota and Wyo-

ming provide an excellent opportunity for this De-

partment to demonstrate how a responsible Federal

agency can manage resource development with proper

regard for environmental protection. It is important

that we not lose this opportunity by engaging in

single-purpose studies which are incapable of devel-

oping comprehensive information or by taking piece-

meal actions which restrict our future options.

The resulting Northern Great Plains Resources Program,

which was jointly undertaken by the Departments of the

Interior and Agriculture, the Environmental Protection

Agency and the State governments, studied a geographic

* Aqueduct Report, Foreword.

n Fed. Pet. App. 89A.

* Fed. Pet. App. 90A.

Memorandum of Secretary Morton, June 30, App. 130.

area of 63 counties in eastern Montana and Wyoming

and western North and South Dakota. After a report

was issued in August 1975 the program was terminated

in January 1976.“ Neither that Program nor any federal

agency has prepared an environmental impact statement

for the region as a whole.

An environmental impact statement has been prepared

on the Eastern Powder River Coal Basin, which covers

the approval of four mining plans and the proposed rail-

road line between Gillette and Douglas, Wyoming.“ This

statement also purports to analyze on a comprehensive

basis a small portion of the Northern Great Plains,

namely the Eastern Powder River Coal Basin in north-

eastern Wyoming. This basin is a part of the coal de-

velopment area in northeastern Wyoming described in the

complaint and studied by the Northern Great Plains Re-

sources Program.

Moreover, even though federal agencies have taken

numerous actions regarding coal development in the

Northern Great Plains since the effective date of the

National Environmental Policy Act (January 1, 1970),

few environmental impact statements have been prepared

on these individual actions. No environmental impact

statement has been issued on any of the coal leases

awarded since 1970.“ Similarly, no environmental state-

** Secretary Kleppe, Letter of January 29, 1976, to Senator Met-

calf, attached to the Secretary’s Response to Questions of the Sub-

committee on Minerals, Materials and Fuels of the Senate Interior

Committee.

This statement has been lodged with the Clerk of this Court

by the federal petitioners.

The Court of Appeals for the Ninth Circuit has ruled that the

failure to prepare an environmental impact statement for a large

federal coal lease in the Northern Great Plains which was approved

after January 1, 1970, violated NEPA. Cady v. Morton, 527 F.2d

786 (C.A. 9, 1975). It is respondents’ understanding that a

statement is now in preparation on the leases involved in that case.

ment has been prepared as to any of the water option

contracts, despite the great importance of water supply

in the area. No environmental statement has been pre-

pared on any of the coal prospecting permits, in spite of

the Department of the Interior’s position that such per-

mits must lead to the award of a lease so long as “com-

mercial quantities” of coal are found. The only environ-

mentai impact statements have been prepared for mining

plans for seven mines as to which the leases had already

been awarded and for authorization of the railroad line

between Gillette and Douglas, Wyoming.

In addition, two draft environmental impact statements

have recently been issued. One involves a mining plan

for the Cordero coal mine in the Eastern Powder River

Basin of Wyoming and the second involves a proposed

reservoir on the Middle Fork of the Powder River also

in Wyoming.” The reservoir waters are partly intended

for agricultural use, but much or most of the water is

expected to be used for coal gasification or another indus-

trial use, such as coal liquefaction, coal fired steam elec-

tric generation, or slurry pipeline.“

* U.S. Geological Survey, Draft Environmental Statement for the

Proposed Plan of Mining and Reclamation, Cordero Mine, Sun Oil

Company, Coal Lease 8385, Campbell County, Wyoming, DES 75-65

(December 1975); Bureau of Land Management, Draft Environ-

mental Impact Statement for the Proposed Reservoir on the Middle

Fork of Power River, DES 76-5 (January 1976).

The Department of the Interior has also prepared an environ-

mental impact statement for the Federal Coal Leasing Program

(often referred to as the Coal Programmatic), which considers fed-

eral coal leasing policy for the entire country. However, no federal

actions other than coal leasing are considered. The Secretary of the

Interior has recently described the Coal Programmatic ( Department

of the Interior News Release, AEP Br. App. 6a) : “This statement is

intended to be a general analysis of the environmental impacts of

major leasing alternatives. It will not, however, satisfy the require-

ment for future site-specific or regional environmental analyses as

individual coal-related actions are proposed.”

SUMMARY OF ARGUMENT

I. Although the position of the Department of the In-

terior in this litigation superficially appears not to have

changed since initiation of the suit, in fact the Depart-

ment has now adopted the policy urged by respondents

of preparing regional environmental impact statements

to analyze related federal activities taking place in the

same geographical area. This policy is currently being

implemented as part of the new coal leasing policy an-

nounced by the Department of the Interior on January

26, 1976.

The Department has specifically applied this policy to

the coal development in the Northern Great Plains. It

has prepared one environmental statement of the type it

now proposes to undertake, the Eastern Powder River

Coal Basin Impact Statement principally covering one

and one-half counties in Wyoming. The Department

plans to do four additional environmental statements on

subportions of the Northern Great Plains region.

The Department’s adoption of regional environmental

statements as the means for satisfying the requirements

of NEPA for full, comprehensive analysis of the en-

vironmental impacts of major federal actions apparently

stems from the Department’s realization, voiced recently

by the Secretary of the Interior, that “mining coal from

one or more leases might have substantial broader sig-

nificance than the direct impact of the particular lease

operations and may set the course of development for

geographic areas encompassing both Federal and non-

Federal lands.” Testimony of the Secretary before the

Subcommittee on Minerals, Materials and Fuels of the

Senate Interior Committee, February 16, 1976 (App. A,

p. 3a below). In the course of that same hearing, the

Secretary and the Solicitor of the Department of the

Interior admitted that the only dispute remaining be-

tween the Department and the respondents herein con-

cerned the size of the region which should be considered.

II. The decision of the Department of the Interior to

prepare comprehensive regional environmental statements

is consistent with the requirements of the National En-

vironmental Policy Act, as expressed in the language of

the statute, its legislative history, numerous judicial de-

terminations, and the administrative practice of federal

agencies.

A. If a regional environmental statement is required

at all, it is clearly required at the present time. As

this Court held in Aberdeen & Rockfish R.R. v. SCRAP,

422 U.S. 289 (1975), NEPA requires issuance of an

environmental impact statement only at the time a fed-

eral agency makes a proposal or, if it makes none, only

when it makes its determination. Here, the Department

of the Interior has already taken a large number of ac-

Unlike the situation presented to this Court in SCRAP,

the federal activity triggering the NEPA process and

requiring adequate analysis

source and setting in motion all of the environmental,

economic and social impacts which coal development will

have. It is clear that a regional environmental state-

ment must be prepared before or at least at the time of

further federal actions.

B. The present position of the Department

Interior concerning the scope of an

pact statement is consistent with the requirement of the

National Environmental Policy Act that federal actions

which are related and have cumulative effects far beyond

the impact of a single project must be the subject of an

appropriate environmental analysis. Section 102 (2) (C)

and (D) of NEPA require that specific subjects be

analyzed in detail in environmental impact statements.

When federal agencies take numerous related actions,

these subjects can be adequately analyzed only if a

comprehensive environmental impact statement is pre-

pared.

Numerous federal decisions interpreting NEPA re-

quire that related federal actions should be considered

in a comprehensive environmental impact statement.

These decisions are consistent with this Court’s deter-

mination in SCRAP that the scope and content of an

environmental statement depend on the kind of federal

action involved. Here, the numerous related federal de-

cisions, which are final in every respect and will have

enormous environmental effects, require preparation of a

comprehensive environmental statement.

The preparation of comprehensive impact statements

accords with the policies and practices of virtually all

federal agencies. The Council on Environmental Quality

has issued guidelines which require comprehensive state-

ments when federal actions are geographically, environ-

mentally or programmatically related. 40 C. F. R. 1500.6.

Numerous agencies have included the preparation of com-

prehensive statements in their formal regulations and

customary practice. They have recognized the value of

such comprehensive analysis and consideration to the

carrying out of NEPA.

C. The actions being taken by the federal petitioners

concerning coal development in the Northern Great Plains

are the kinds of related actions requiring a comprehen-

sive environmental statement. The actions are geograph-

ically related because they all involve the Fort Union

and Powder River coal formation.

The use of water, air and water pollution, population

increases and other cumulative effects of the individual

projects make them clearly related environmentally. For

example, commitments of water for one project will have

an inevitable effect not only on the available water sup-

ply for agriculture, wiidlife, and recreation but also on

the feasibility of other projects which will need the same

water. Air pollution produced by one facility will mingle

with that from many others.

The various federal actions are also programmatically

related. The Department of the Interior has recognized

this in several studies, culminating in the Northern

Great Plains Resources Program. This program was

developed because the Department of the Interior spe-

cifically recognized the need to coordinate and control

development in the region.

It is impossible to carry out the specific requirements

of Section 102 (2) (C) to analyze the effects and alterna-

tives of federal actions except on a comprehensive, re-

gional basis. The cumulative effects of all the projects

must be analyzed concerning water usage, air and water

pollution and many other important elements of the en-

vironment. Such basic alternatives as whether western

coal is economically and environmentally preferable to

eastern coal when shipped to eastern markets, whether

strip mining should be concentrated in that portion of

the region where reclamation is most likely, and whether

railroad transportation is preferable to slurry pipelines

can only be analyzed on a regional basis.

Those agencies charged by the Congress and the Execu-

tive with primary responsibility for overseeing the proper

function of the National Environmental Policy Act and

of furthering its goals, the Council on Environmental

Quality and the Environmental Protection Agency, have

specifically concluded that NEPA requires the Depart-

ment of the Interior to prepare a comprehensive re-

gional environmental statement on coal development in

the Northern Great Plains. This interpretation of the

Act, by agencies charged with the responsibility of en-

forcing it, is of course entitled to great weight.

III. The appropriate region for a regional environ-

mental impact statement concerning coal development in

the Northern Great Plains is northeastern Wyoming, east-

ern Montana, and the western Dakotas. This area was

not defined by respondents; instead, it is the precise

area of the Fort Union and Powder River coal forma-

tions, Consequently, the Department of the Interior itself

has repeatedly recognized this region as the appropriate

one for comprehensive environmental analysis. The

Northern Great Plains Resources Program, the federal

government’s major study of the region encompassed the

same area. Moreover, any subregional analysis prevents

consideration of the cumulative impact of development as

to water supply, air and water pollution, and increased

population. The Department of the Interior’s belated de-

cision to divide the Northern Great Plains into regions is

therefore inconsistent with its duties to carry out ade-

quate environmental] analysis under NEPA and is invalid.

IV. Even if the Department of the Interior’s decision

to do environmental statements on subregions of the

Northern Great Plains complies with NEPA, further

federal action may not be taken without preparation of

adequate subregional statements. Since subregional state-

ments have not been prepared outside of the Eastern

Powder River basin, major federal actions concerning

coal development cannot be taken in those areas until

a subregional statement is completed. The Secretary

of the Interior has explicitly recognized this principle.

In addition, the Powder River environmental state-

ment is clearly inadequate as a subregional statement

because of its complete or almost complete failure to

discuss the basic alternatives involved in coal develop-

ment. However, since the adequacy of the statement has

not been litigated in this case, it is plainly not appro-

priate for determination by this Court. Consequently,

either this issue should be remanded to the district court

or respondents should be left free to raise it in separate

litigation.

ARGUMENT

The petitions for writ of certiorari in these cases pre-

sented the question whether the National Environmental

Policy Act required preparation of a regional environ-

mental impact statement relating to coal development in

the Northern Great Plains. That issue is of extremely

great importance to the administration of NEPA. It

involves whether the Act requires federal agencies to pre-

pare comprehensive environmental statements on a pro-

grammatic or regional basis if a number of their actions

are related.

We submit, however, that that important question is

no longer fairly before this Court. While the brief of

the federal petitioners (as well that of the industry

petitioners) is still devoted to this question, the Depart-

ment of the Interior has adopted a policy, pursuant to

the National Environmental Policy Act, of preparing re-

gional environmental impact statements whenever it is

taking a number of actions in the same geographical

area. Moreover, it has specifically applied this policy to

the coal development in the Northern Great Plains region.

In short, the Department of the Interior has adopted

the position of respondents in this litigation. The only

remaining controversy appears to be that the Department

of the Interior has determined that the appropriate scope

for the regional statements which are prepared is sub-

sections of the Northern Great Plains region. We there-

fore believe that the correctness of this determination is

the only issue now before this Court.

We will show below that the Department of the Inte-

rior has adopted the position advanced by respondents

in this litigation that regional environmental statements

must be prepared, pursuant to the National Environ-

mental Policy Act, before a federal agency takes a num-

ber of related actions in the same geographical area and

has specifically applied this policy to the coal develop-

ment in the Northern Great Plains region. We will fur-

ther show that the Department of the Interior properly

construed the National Environmental Policy Act and

this Court’s decision in Aberdeen & Rockfish R. R. v.

SCRAP, 422 U.S. 289 (1975) (hereafter SCRAP II),

in deciding both that a regional environmental statement

was required and in determining that the time was al-

ready ripe for preparation of such a statement concerning

coal development in the Northern Great Plains.

We will then discuss the only present disagreement

between the Department of the Interior and respondents

—the scope of the area which should be considered in a

regional statement. The Department of the Interior

claims that five subsections of the Northern Great Plains

are the appropriate areas for analysis in regional envi-

ronmental statements. Respondents contend that the en-

tire Fort Union and Powder River coal formations in

northeastern Wyoming, eastern Montana, and the western

Dakotas should be considered. Indeed, we will show that

the Department of the Interior has itself always consid-

ered this the appropriate region for environmental analy-

sis.

THE DEPARTMENT OF THE INTERIOR HAS

ADOPTED A POLICY OF PREPARING REGIONAL

ENVIRONMENTAL IMPACT STATEMENTS WHEN

SEVERAL FEDERAL ACTIONS ARE BEING CON-

SIDERED INVOLVING THE SAME GEOGRAPHIC

REGION AND HAS APPLIED THIS POLICY TO

COAL DEVELOPMENT IN THE NORTHERN

GREAT PLAINS

The Department of the Interior has been gradually

moving towards a policy which is in agreement with

that of respondents in this litigation—that regional envi-

ronmental impact statements should be prepared concern-

ing related federal proposals involving the same geo-

graphical area. In testimony before the Subcommittee on

Fisheries and Wildlife, Conservation and the Environ-

ment of the House Committee on Merchant Marine and

Fisheries in September 1975, George L. Turcott, Asso-

ciate Director of the Bureau of Land Management of

the Department of the Interior, described the progress

of the Department’s adoption of regional analyses (Na-

tional Environmental Policy Act Oversight, No. 94-14,

94th Cong., Ist Sess. 29, 30):

Based on the court decisions and on the comments

that we have received on both individual and pro-

gram type EIS’s, we have been considering the de-

velopment of geographic area EIS’s, starting with

the geographic EIS now being prepared for BLM’s

livestock grazing program.

Geographical area or regional EIS is one alterna-

tive to solving the problem of cumulative impacts

assessments, and it would also cover current specific

proposals.

A brief statement about western energy development

will highlight the complexity and multiplicity of

problems and issues we must address, and illustrate

the possible use of regional program EJIS’s.

There are many existing and proposed energy re-

lated projects in the three-State rca of Montana,

North Dakota, and South Dakota. These include coal

mining, coal gasification, powerplants, water devel-

opments, transportation systems, pipelines, and trans-

mission lines.

These projects, to the extent Federal actions are

involved, must meet NEPA requirements for environ-

mental assessment and EIS’s.

The projects and related facilities require action by

BLM, the Bureau of Reclamation, U.S. Geological

Survey, the Bureau of Indian Affairs, the Fish and

Wildlife Service, and others in Interior.

In addition, there will be interagency involvement

with at least the U.S. Forest Service, the Environ-

mental Protection Agency, the Federal Energy Ad-

ministration and the Corps of Engineers. There may

be more.

All this requires a carefully worked out strategy

for preparing EIS’s.

We have authorized what we might call a geographic

statement for all of northwest Colorado, involving

several ongoing coal mines, in part on private land,

and in part on public lands.

There are many new coal applications, with mammoth

proposals for four-lane highways to serve this area,

new towns, transmission lines, oil and gas pipelines.

It is a very large complex.

Another official of BLM, Robert Jones, Chief of the

Environmental and Planning Division, then described the

BLM involvement in the Dakotas and Montana, pointing

out that about 80 percent of the mineral resources in

North Dakota are under federal jurisdiction, and noting

that 5 major energy complexes were being planned or

were in various stages of development there. As he ex-

plained (id. at 31):

This is the region you see here. These projects are

interrelated. One project in the area might have ac-

ceptable environmental consequences, but, if you have

border-to-border projects all the way across you have

a substantially different environmental situation.

Subsequently, Secretary of the Interior Kleppe filed an

affidavit in this Court stating (App. 194):

* * * the Department has determined that, whenever

possible, several proposals for federal actions in the

same region will be covered by a single environ-

mental impact statement rather than by multiple

statements.

On January 26, 1976, the Secretary announced his deci-

sion to end the moratorium on federal coal leasing. In

doing so, he adopted a number of new policies which are

contained in the Executive Summary and Decision Docu-

ment.” He decided with regard to environmental impact

statements (id. at 18-1; App .B, pp. 20a-2la below):

Where an EIS is required under NEPA for a par-

ticular Departmental action, whether that EIS will

be a regional EIS or a site-specific EIS, will be de-

termined according to the following principles:

A. As a general proposition, and as determined

by the Secretary, when action is proposed involving

coal development such as issuing several coal leases

or approving mining plans in the same region, such

actions will be covered by a single EIS rather than

% Both the Executive Summary and Decision Document and the

Program Decision Option Document relating to the Federal Coal

Program have been lodged with the Clerk of this Court. Relevant

portions of the Executive Summary and Decision Document have

been reproduced as Appendix B of this brief.

by multiple statements. In such cases, the region

covered will be determined by basin boundaries,

drainage areas, areas of common reclamation prob-

lems, administrative boundaries, areas of economic

interdependence, and other relevant factors.

B. In areas where the Secretary has determined

that a regional EIS is to be prepared, if an individ-

ual action requires approval prior to completion of

the regional EIS and, in the case of leasing activities,

meets the short-term criteria, an environmental an-

alysis will be completed. If the environmental analy-

sis indicates that the individual action is such an

integral part of the regional action that its environ-

mental effects cannot be properly considered unless

the regional EIS is completed, that action will be

held until completion of the regional EIS.

C. In all other cases, each coal lease or mining plan

will be analyzed and an environmental analysis pre-

pared to determine whether or not an EIS is re-

quired. If the environmental analysis indicates an

EIS is necessary to comply with NEPA, a site-spe-

cific EIS, or a regional EIS, if a series of proposed

actions with interrelated impacts are involved, will

be prepared unless a previous EIS has sufficiently

analyzed the impacts of the proposed action(s).

(emphasis added)

In the news release accompanying his January 26th state-

ment on the new federal coal leasing policy, the Secretary

declared that the policy would include, among other steps,

“preparation of regional environmental impact state-

ments, wherein groups of coal and coal-related actions

are proposed in a defined geographical area * * *.” De-

partment of the Interior News Release, January 26, 1976

(See AEP Br. App. 6a).

The Secretary’s policy to prepare regional environ-

mental statements has been specifically applied to the

Northern Great Plains. The Program Decision Option

Document of the Bureau of Land Management ranked

in order of priority 30 areas for possible regional envi-

ronmental statements. Program Decision Option Docu-

ment, The Proposed Federal Coal Leasing Program, De-

cember 16, 1975, p. 38. Four of the first ten areas are

in the Northern Great Plains region: the Eastern Powder

River in northeastern Wyoming (which has been com-

pleted), most of the remainder of the coal area in north-

eastern Wyoming not covered by the Eastern Powder

River environmental statement, southeastern Montana,

and western North Dakota. A fifth area in eastern Mon-

tana is involved in a later statement. These regional

statements will almost complete regional analysis of the

Northern Great Plains. Moreover, the Bureau of Land

Management has proposed to begin the regional statement

for western North Dakota in April 1976. Preliminary

Statement, Preparation Plan for an Environmental Im-

pact Statement on Energy Development in Western

North Dakota (March 15, 1976).

The decision to prepare regional statements was reaf-

firmed by the Secretary of the Interior during his ap-

pearance on February 16, 1976, before the Subcommittee

on Minerals, Materials and Fuels of the Senate Interior

Committee. In his prepared testimony, the Secretary

stated (see App. A, p. 3a below):

In some cases, mining coal from one or more leases

might have substantial broader significance than the

direct impact of the particular lease operations and

may set the course of development for geographic

areas encompassing both Federal and non-Federal

lands. In such instances, as determined by the Secre-

tary, the Interior Department will prepare a re-

gional environmental impact statement before de-

ciding to proceed. The region covered will be deter-

mined by basin boundaries, drainage areas, economic

interdependence, and other relevant factors.

As an example of the type of regional statement the De-

partment would henceforth prepare, the Secretary cited

the Eastern Powder River Coal Basin Environmental Im-

pact Statement and the statement under preparation

for the area in northwest Colorado (App. A, p. 12a).

The Secretary’s prepared testimony further set forth

the Department of the Interior’s position concerning the

present litigation. The Secretary stated that the Depart-

ment differed with respondents in only two respects.

First, he said that there was a disagreement over the

size of the area to be considered in the regional state-

ment (App. A, p. 12a below):

The suit originally sought to enjoin further leasing

actions and approval of coal mining plans within an

area defined as the Northern Great Plains Region

until such time as a Federal coal plan is devised for

that region and an Environmental Impact Statement

is prepared on that plan. As indicated earlier in this

testimony, we intend, wherever necessary to complete

regional Environmental Impact Statements, but of a

different magnitude.

Then the Secretary described what he believed was the

“real difference we have with the decision of the Circuit

Court in the Sierra Club suit,” erroneously claiming that

the litigation involved the issue whether the Department

of the Interior was required to prepare a regional plan

for development (ibid.). While respondents believe that

such a plan would indeed be extremely desirable and that

regional planning probably is required by NEPA (see

pp. 86-89 below), the complaint did not request the

7° It had not previously in this litigation been claimed that the

Eastern Powder River statement is a regional statement of the

type petitioners have sought in this litigation. The court of appeals

speci cally found both that no such claim had been made and that

that statement does not “comprehensive study the regional impact of

coal development in the Northern Great Plains * * *” (Fed. Pet.

App. A, pp. 10A-11A, note 15).

adoption of a regional plan as contrasted to regional

analysis in an environmental statement and no such

issue is before this Court.

In any event, it is clear that the Secretary did not

claim that the Department of the Interior has any dis-

pute with respondents’ contention that a regional environ-

mental statement is required as to coal development in

the Northern Great Plains.

In the course of Secretary Kleppe’s a ance be-

fore the Subcommittee, Senator Metcalf Ben the Sec-

retary on the question of the cumulative impacts of the

Department’s activities in the Northern Great Plains

(Transcript, Oversight Hearings on Federal Coal Leas-

ing Program, Senate Interior Commit Feb

1976, p. 66) : e

[T]he cumulative impact of the activities of the Sec-

cretary of Interior in these coal leasing regions is

the regulation of resources and is the regulation and

the control of the whole economic impact of these

areas and what they want you to do and what we

want you to do is to have some overall planning

and not just go bit by bit and one at a time on leas-

ing programs, but to have administration of the

Northern Great Plains, insofar as your leasing pol-

icy is going to affect the resources so that we know

what your overall policy is going to be.

You can deny that you don’t want to have any im-

pact on the resources. But as a practical matter, with

the vast amount of land that the Federal Government

holds in the Western United States and the vast

amount of coal land that is going to be mined, you’re

doing just exactly what you say you don’t want to do

In response, the Secretary deferred to the Solicitor of

the Department, who stated (id. at 67-68) :

We have admitted that we think there ought to be

regional planning, but as opposed to this Sierra Club

case, the Northern Great Plains case, we are not

talking about a region that simply blankets a five

state area. And that case did include Nebraska, Wyo-

ming, North and South Dakota and Montana. But we

are talking about regions that are defined more by

drainage areas, basin boundaries and economic in-

dependence.

So the Government’s position should not be taken

as one which resists planning on a regional basis.

It is simpl[y], we feel, that a region should be de-

fined because of the actual circumstances and condi-

tions and not simply taking a large area of the

United States without regard to the actual facts.

In sharp contrast to the position taken in the federal

government’s brief before this Court—that a single state-

ment is required only “when a number of related projects

logically form a single plan or proposal” (Fed. Br. 31,

note 24)—the Department of the Interior plainly has

concluded that a regional statement is required when

the series of proposed actions has “interrelated impacts”

(Executive Summary and Decision Document, supra;

Appendix B, p. 21a below). Moreover, it has determined

on this basis to do regional statements concerning coal

development in the Northern Great Plains. We there

fore submit that no controversy now exists between re-

spondents and the Department of the Interior concerning

the basic issue whether regional environmental state-

ments must be done prior to federal actions concerning

coal development in the Northern Great Plains.

II.

THE DETERMINATION OF THE DEPARTMENT

OF THE INTERIOR TO PREPARE REGIONAL EN-

VIRONMENTAL IMPACT STATEMENTS IS CON-

SISTENT WITH THE NATIONAL ENVIRONMENT-

AL POLICY ACT AND THIS COURT’S DECISION

IN SCRAP II

The petitioners challenge the decision of the court of

appeals on two major grounds. First, petitioners argue

that the time at which an environmental impact state-

ment must be prepared is determined by the time when

the government formally proposes action. Until there

is an express federal “proposal,” the petitioners claim

there is no need for an environmental statement. Fed.

Br. 24, 39-42; AEP Br. 25-28, 30-33. Second, federal

petitioners argue that because the Department of the

Interior has not “proposed a separate ‘regional’ plan,”

the only federal action is “either national or local in

character” and no regional analysis is necessary. Fed.

Br. 22, 23, 29-35. See also AEP Br. 33-35. This argu-

ment, which is also based on the alleged need for a

“proposal,” in fact goes to the question of the proper

scope, rather than timing, of the environmental state

ment. For both of these propositions, petitioners rely

in large measure on this Court’s recent decision in

SCRAP II.

As we have seen above, the Department of the In-

terior has resolved both of these issues. It has deter-

mined that regional environmental impact statements

should be prepared on coal development in the Northern

Great Plains and that the time for the preparation of

these statements is prior to further federal action. We

submit that these decisions are consistent with the Na-

tional Environmental Policy Act and SCRAP II.

A. THE TIME IS RIPE FOR THE PREPARATION

OF A REGIONAL ENVIRONMENTAL IMPACT

STATEMENT

Petitioners contend that the National Environmental

Policy Act does not require the preparation of a re-

gional environmental impact statement until federal pro-

posals for regional development have been made. Fed.

Br, 24, 39-42; AEP Br. 25-28, 30-33. In doing so, they

rely heavily on this Court’s opinion in SCRAP II. We

submit, on the contrary, that the only substantial issue

in this case relates to the scope, rather than the timing,

of the environmental impact statement.

There can be no serious question as to the timing

of a regional statement in this case. The federal peti-

tioners are not merely preparing actions in the future

but have already taken numerous actions, including in the

last few months, concerning coal development in the

Northern Great Plains. The only question is therefore

whether the federal agencies can continue to take actions

without preparation of a regional environmental state-

ment. The resolution of that issue depends upon whether

the scope of the environmental analysis for particular

federal actions can be confined to particular projects or

must be done on a regional basis. As we will show be-

low, it is clear that a regional environmental statement

must be prepared which considers the cumulative effects

of, and reasonable alternatives to, related actions in the

same geographical area.

Section 102(2)(C) of the National Environmental

Policy Act, 42 U.S.C. 4332 (2) (C), states that the time

for the preparation of environmental impact statements

is when federal agencies make a “recommendation or re-

port on proposals for legislation and other major Fed-

eral actions significantly affecting the quality of the hu-

man environment * * *.” That Section further provides

that the environmental statement “shall accompany the

proposal through the existing agency review processes.”

Thus, the language of NEPA is perfectly clear that en-

vironmental statements must be prepared at the time pro-

posals are made by federal agencies and certainly by the

time federal actions are taken.

This Court’s holding in SCRAP II is fully consistent

with this analysis, The Court found 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” (emphasis in original).

422 U.S. at 320. The Court then said that, “where an

agency initiates federal action by publishing a proposal

* * *, the statute would appear to require an impact

statement to be included in the proposal * * *.” Jbid.

However, the Court found that in the ICC proceeding

involved in SCRAP II, the environmental impact state-

ment did not have to be prepared until the ICC made its

decision (ibid.):

[Tjhe ICC has made no proposal, recommendation

or report. The only proposal was the proposed new

rates filed by the railroads. Thus, the earliest time

at which the statute required a statement was the

time of the ICC’s report of October 4, 1974 * * *.

(emphasis in original)

The decision of the court of appeals in this case is

fully consistent with the language of NEPA and this

Court’s decision in SCRAP II. The court of appeals did

not hold that an environmental impact statement must

be prepared for some uncertain future federal decision or

action. On the contrary, the court of appeals specifically

stated (Fed. 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, whether

the proposal for action has progressed beyond the

“dream” stage into some tangible form so that the

time for an impact statement is ripe.

The court of appeals then stated: “Preparation of a

statement must precede, or at least accompany, prepara-

tion of the recommendation or report on the proposal

* * *” (emphasis added). Ibid.

Here, at the time that the court of appeals issued

its opinion, federal agencies had already made numerous

decisions concerning coal development in the Northern

Great Plains. As we have seen above (pp. 11-12), the De-

partment of the Interior, subsequent to ge effective

date of NEPA, had already issued 29 coal mining leases

covering 137,802 acres, granted 97 coal prospecting per-

mits covering 685,280 acres which confer the right to

obtain leases, entered into water option contracts involv-

ing 601,000 acre-feet of water per year, and approved

four mining plans. Hundreds of other applications were

pending. Nevertheless, the court of appeals did not order

that a regional environmental statement must be pre-

pared because the federal government “has largely sus-

pended activity” in the Northern Great Plains and “irre-

trievable commitments are largely being avoided.” Fed.

Pet. App. A, p. 46A. The court remanded the case to

allow the federal petitioners and subsequently the district

court to consider whether the federal agencies were pro-

ceeding further with devlopment so that a regional envi-

ronmental statement would have to be prepared before

further actions were taken. Id. at 49A.“

7! Both the federal and industry petitioners repeatedly state that

the court of appeals held that an environmental statement was

necessary if the Department of Interior was merely contemplating

action. Fed. Br. 31-35; AEP Br. 24-25. The use by the court of

appeals of the word “contemplating” in describing federal peti-

tioners’ conduct was appropriate at the time of the decision, when

the moratorium on leasing imposed by Secretary Morton in 1973

Since the court of appeals’ decision, the federal peti-

tioners have answered by their actions the questions re-

manded by the court of appeals. The Secretary of the

Interior has approved five mining plans—one on Novem-

ber 11, 1975, and four more, after this Court stayed

the injunction issued by the court of appeals in Febru-

ary, 1976.

The Secretary of the Interior has further made clear

that he intends to proceed with federal actions in the

Northern Great Plains. He has ended the moratorium

on federal coal leasing, including in the Northern Great

Plains. In announcing the new coal leasing policy, he

has pointed out that “[i]t is obvious that these Federal

coal deposits must be developed.” Department of the

Interior News Release. AEP Br. App. 3a. He has

stated that existing preference right lease applications

“must be acted upon.” App. B, p. 9a below.” Ac-

was still in effect and the Department of the Interior did not

appear on the verge of further action.

However, the court of appeals specifically held the very opposite

of what the petitioners claim. It stated: “Our conclusion that

major federal action is contemplated in the Northern Great Plains

does not mean, ipso facto, that a comprehensive regional impact

statement is required.” Fed. Pet. App. A, p. 42a. It therefore re-

manded the case, even though it found that action was contemplated,

to the district court to determine whether the time for preparation

of the statement was ripe. It directed the district court, in deciding

ripeness, to determine “[{h]jow likely is the program to come to

fruition and how soon will that occur.” and “[t]o what extent are

irretrievable commitments being made and options precluded.” Fed.

Pet. App. A, p. 43A.

We note that the Department of the Interior’s own regulations

provide that Section 102(2)(C) should “be construed with a view

to the overall impact of the action proposed, and of further actions

contemplated” (emphasis added). Manual Part 516, Ch. 2, Section

.5.B, 36 Fed. Reg. 19344. CEQ’s Guidelines likewise state that

contemplated actions should be considered. 40 C. F. R. 1500.6(a) ;

38 Fed. Reg. 20551.

7 There are presently 192 preference right lease applications,

covering 9.3 billion tons of recoverable coal reserves, in 6 western

cording to the Program Decision Option Document, p. 1,

the proposed leasing program includes “processing of

noncompetitive coal lease applications * * *” and “offer-

ing new lease tracts *.” The same document sug-

gests a time framework for proceeding with the coal

leasing program, calling for industry nominations of

leasing areas 30 days after the decision on the program

and the holding of lease sales eight months after the

date of decision. Id. at 39. Draft environmental impact

statements have recently been issued for a 6,500-acre

strip mine in the Eastern Powder River Basin of Wyo-

ming and for a reservoir in the same area which is in-

tended to serve two projected coal conversion plants,

The Bureau of Land Management has ranked four major

coal areas of the region as among the first for which

“regional” statements will be prepared, terming them

“high priority areas.” Program Decision Option Docu-

ment, pp. 37-38.

In these circumstances, we submit that there is no

substantial question on the timing of a regional environ-

mental impact statement. As we will show below, a

regional environmental statement must be prepared when

federal agencies are taking numerous related actions in

a particular geographic area. If this contention concern-

ing the scope of environmental statements is correct, a

regional environmental statement must plainly be pre-

pared no later than the time when federal agencies issue

a lease, approve a mining plan, or take other action.”

Since the federal petitioners have already taken numer-

ous such actions and are preparing to take numerous

States. A large proportion of these applications are in the Northern

Great Plains region. Department of the Interior News Release,

February 23, 1976.

1 Of course under the language of NEPA and this Court’s de-

cision in SCRAP II, if the federal agency makes a proposal prior

to its decision, the environmental statement must be prepared at

that time.

more, it is clear that a regional environmental impact,

far from being premature, is considerably overdue. At

the least, it must be prepared and considered before, or

at the time, further federal actions are taken.

One of the reasons NEPA was adopted was to avoid

step-by-step commitments of resources without compre-

hensive analysis and consideration. As the Senate report

stated (National Environmental Policy Act of 1969, S.

Rep. No. 296, 91st Cong., Ist Sess, 5):

Important decisions concerning the use and the shape

of man’s future environment continue to be made in

small but steady increments which perpetuate rather

— avoid the recognized mistakes of previous dec-

es.

Today it is clear that we cannot continue on this

course.

We submit that the comprehensive environmental impact

statement on related federal actions is the principal

mechanism to carry out the essential purpose of NEPA.

B. THE NATIONAL ENVIRONMENTAL POLICY

ACT REQUIRES PREPARATION OF COMPRE-

HENSIVE ENVIRONMENTAL IMPACT STATE-

MENTS WHEN FEDERAL AGENCIES ARE

TAKING A NUMBER OF RELATED ACTIONS

As we have seen above, the basic issue in this case,

prior to the decision of the Department of the Interior

to prepare regional environmental statements concerning

coal development in the Northern Great Plains, concerned

whether NEPA required that the federal petitioners pre-

pare a regional environmental statement. The first step

in this analysis is whether NEPA requires comprehen-

sive environmental statements in situations where a num-

ber of federal actions are so related that the environ-

mental impacts and alternatives must be analyzed on a

broader basis than a statement on a specific project. We

will show in this section that the Act’s language, legis-

lative history, federal court decisions, and administra-

tive interpretation all strongly support the requirement

that comprehensive statements are required by NEPA in

particular situations. We will then show in the next

section (pp. 73-101) that the coal development in

the Northern Great Plains is, as the Department of the

Interior has itself concluded, the kind of situation involv-

ing closely related federal actions where such a compre-

hensive environmental statement is required by NEPA.

1. The Language of the National Environmental

Policy Act and Its Legislative History Show

That Related Federal Actions Must Be Consid-

ered in a Comprehensive Environmental Impact

Statement

In adopting the National Environmental Policy Act,

42 U.S.C. 4321, et seg., Congress recognized the historic

failure of federal agencies to consider the effect of their

decisions on the environment, Section 101 (a) of NEPA,

42 U.S.C. 4331(a), states this recognition and declares

a commitment on the part of the federal government “to

use all practicable means and measures” to correct that

failure and Section 101(b), 42 U.S.C. 4331(b), requires

that the federal government “coordinate” federal activi-

ties to protect the environment. Section 102 (2) (A), 42

U.S.C. 4332 (2) (A), provides that federal agencies must

“utilize a systematic interdisciplinary approach which

will insure the integrated use of the natural and social

sciences and the environmental design arts in planning

and in decisionmaking which may have an effect on

man’s environment.” Section 102 (2) (G), 42 U.S.C, 4332

(2) (G), requires that federal agencies “initiate and util-

ize ecological information in the planning and develop-

ment of resource-oriented projects.”

- In order to implement the essential purposes of the

Act, the Congress mandated in Section 102(2)(C), 42

—

U.S.C. 4332 (2) (C), that federal actions “significantly

affecting the quality of the human environment” be ana-

lyzed in a detailed“ environmental impact statement.

The Act required that this environmental statement

should analyze:

(i) the environmental impact of the proposed ac-

tion, :

(ii) any adverse environmental effects which can-

not be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the

proposed action should it be implemented.

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

the importance of the requirements relating to alterna-

tives by requiring that federal agencies study, develop,

and describe appropriate alternatives to recommended

courses of action in any proposal which involves unre-

solved conflicts concerning alternative uses of available

resources.“

We submit that the requirements of Section 102 (2)

are involved without preparation of a comprehensive

environmental impact statement. We particularly empha-

size the requirements relating to environmental impact

(Section 102 (2) (C) (i)), to adverse environmental ef-

fects (Section 102 (2) (C) (ii)) and to alternatives (See-

tion 102 (2) (C) (iii) (D)). When a number of federal

actions are closely related, the environmental impact and

effects of one of them cannot be analyzed without consid-

ering the impact and effects of other related actions. Simi-

larly, if a federal action is related to other actions, the

alternatives cannot be fairly analyzed unless all the re-

lated actions are considered.“ Consequently, as we will

describe below, the lower federal courts and numerous

federal agencies, including the Council on Environmental

Quality, the Environmental Protection Agency, and the

Department of the Interior itself, have agreed that com-

prehensive statements are necessary to analyze adequate-

ly related federal actions.

2. Numerous Federal Court Decisions Have Held

That the National Environmental Policy Act

Requires That Related Federal Actions Must

Be Considered in a Comprehensive Environ-

mental Impact Statement

The federal courts have repeatedly held that compre-

hensive environmental impact statements must be pre-

pared, pursuant to NEPA, when federal agencies take

several related actions. In Natural Resources Defense

Council v. Morton, 458 F.2d 827, 835 (C.A.D.C. 1972),

the court stated as to a sale of oil and gas leases:

The scope of this project is far broader than that of

other proposed Federal actions discussed in impact

statements, such as a single canal or dam. The Ex-

ecutive’s proposed solution to a national problem, or

a set of inter-related problems, may call for each of

several departments or agencies to take a specific

action; this cannot mean that the only discussion of

alternatives required in ensuing environmental-im-

pact statements would be the discussion by each

department of the particular actions it could take

as an alternative to the proposal underlying its im-

pact statement.

** We will show below (pp. 73-101), in particular, that a regional

statement of coal development in the Northern Great Plains is

essential in order to analyze the impact, effects, and alternatives

concerning this development.

—

When the proposed action is an integral part of a

coordinated plan to deal with a broad problem, the

range of alternatives that must be evaluated is

broader.

Judge Leventhal then went on to explain (id. at 836) :

What NEPA infused into the decision-making proc-

ess in 1969 was a directive as to environmental im-

pact statements that was meant to implement the

Congressional objectives of Government coordination,

a comprehensive approach to environmental man-

agement, and a determination to face problems of

pollution “while they are still of manageable pro-

portions and while alternative solutions are still

available” rather than ist in environmental de-

cision-making wherein “policy is established by de-

fault and inaction” and environmental decisions

“continue to be made in small but steady increments”

mg dealt with u “they reach crisis

8. Rep. No. 91-286, 91st Cong., Ist Sess. (1969), p.

5. a added)

The Court of Appeals for the First Circuit held in

Jones v. Lynn, 477 F.2d 885, 891 (1973), that the prep-

aration of environmental impact statements on individual

buildings within an urban renewal project was ot suffi-

cient and that a comprehensive environmental impact

statement was required:

[I]t would not seem sensible to adopt the piecemeal

approach which HUD seeks to adopt, whereby it will

prepare a modified impact statement separately for

each proposed construction as a mortgage insurance

application is filed, an approach akin to equating an

appraisal of each tree to one of the forest.

If the district court is to properly carry out the

NEPA mandate, it must, if the planning reveals an

expectation of substantial further federal assistance,

order HUD to conduct an environmental study of the

entire Fenway program under 42 U.S.C. § 4332 (2)

still be made and, just as important, of informing

the members of the community and the public what

the environmental impact will be, what adverse ef-

fects cannot be avoided, and what irretrivable com-

mitment of resources are involved when any plan is

fulfilled.

Similarly, in Greene County Planning Board v. FPC,

455 F.2d 412, 420 (1971), certiorari denied, 409 U.S.

849, the Court of Appeals for the Second Circuit held

that a “a single coherent and comprehensive environ-

mental analysis” was required of an entire power proj-

ect."

In Scientists’ Institute for Public Information v. AEC,

481 F.2d 1079 (1973), the Court of Appeals for the

District of Columbia Circuit considered the issue, relat-

ing to the Liquid Fast Breeder Reactor Program, wheth-

er the Atomic Energy Commission “must issue [an

environmental impact] statement for the research and

development program as a whole, rather than simply for

individual facilities * * *.” Jd. at 1085. Relying on

the interpretation of CEQ (see pp. 62-64 below), the

court found that “[t]he Commission takes an unneces-

sarily crabbed approach to NEPA in assuming that the

impact statement process was designed only for particu-

lar facilities rather than for analysis of the overall

effects of broad agency programs. Indeed quite the con-

trary is true.” Id. at 1086-1087,"

This Court’s disapproval of the Greene County decision in

SCRAP II related to the question of the timing of the statement

rather than its scope. 422 U.S. at 321, note 20.

** Scientists’ Institute has been described by the Court of Appeals

for the Ninth Circuit as a “leading case.” Friends of the Earth

v. Coleman, 513 F.2d 295, 299 (1975); Cady v. Morton, 527 F.2d

786, 795-796, note 9.

In Chelsea Neighborhood Assn’s v. U.S. Postal Service,

516 F.2d 378 (1975), the Court of Appeals for the Sec-

ond Circuit affirmed a lower court finding that an envi-

ronmental impact statement was legally inadequate in

failing to assess a likely future housing project to be

undertaken by the City of New York and added to the

facility planned by the Postal Service. The court pointed

out (id. at 383):

It is correct that the Service will not build the hous-

ing portion of this project, but even so, the Service

cannot ignore it. If the potential impact of the hous-

ing is not considered before the VMF [Vehicle Main-

tenance Facility] is constructed, it will be too late

to reassess the project as a whole no matter what

is shown by a later EIS for the housing prepared by

another agency.

In Cady v. Morton, 527 F.2d 786 (C.A. 9, 1975),

a case which the Council on Environmental Quality has

described as “almost a companion case to the Northern

Great Plains decision * * *” (Environmental Quality—

1975, 6th Annual Report of the Council on Environ-

mental Quality, p. 646), the court of appeals considered

the question of the proper scope of an environmental

impact statement. There, an environmental statement

had been prepared on a mining plan covering some

770 acres of strip mining, but none had been prepared

prior to the decision of the Department of the Interior

to approve the basic leases which covered an area of

more than 30,000 acres. The court distinguished a num-

ber of cases, including its own earlier decisions which

tt The court distinguished Trout Unlimited v. Morton, 509 F.2d

1276 (C.A. 9, 1974), Environmental Defense Fund v. Armstrong,

487 F.2d 814 (C.A. 9, 1973), Friends of the Earth v. Coleman, 518

F.2d 328 (C.A. 9, 1975), Sierra Club v. Stamm, 507 F.2d 788 (C.A.

10, 1974), Sierra Club v. Callaway, 499 F.2d (C.A. 5, 1974), and

Indian Lookout Alliance v. Volpe, 484 F.2d 11 (C.A. 8, 1973. See

527 F.2d at 794. 795, notes 7 and 9.

the petitioners here have relied upon heavily, and stated

(id. at 795):

While it is true that each mining plan prepared for

tracts within the leased area is to a significant de-

gree an independent project which requires a separate

EIS with respect to each, it is no less true that the

breadth and scope of the possible projects made possi-

ble by the Secretary’s approval of the leases require

the type of comprehensive study that NEPA man-

dates adequately to inform the Secretary of the

possible environmental consequences of his approval.

The court explained that “it cannot be denied that the

environmental consequences of several strip mining proj-

ects extending over twenty years or more within a

tract of 30,876.45 acres will be significantly different

from those which will accompany Westmoreland’s ac-

tivities on a single tract of 770 acres.” bid. Thus,

the crucial criterion for the scope of an environmental

impact statement was deemed to be, as this Court found

in SCRAP (see our discussion on pp. 58-60 below), the

nature and effect of the particular federal decision.

In the recent case of Natural Resources Defense Coun-

cil v. Callaway, 524 F.2d 79, (1975), the Court of

Appeals for the Second Circuit considered the plaintiffs’

claim that an environmental impact statement prepared

for a particular Navy project to dredge and dump spoils

in Long Island Sound was inadequate because of its

failure to consider other pending proposals, some by

other government agencies and at least one by a private

™ The federal petitioners characterize (Fed. Br. 36, note 28)

Cady v. Morton as holding that “the appropriate unit for environ-

mental study is a single mining lease.” That is inaccurate. The court

ruled, agreeing entirely with the plaintiffs on this issue, that an

environmental statement for a mining plan could not satisfy

NEPA’s requirement of analysis of the government’s decision to

approve the overall lease. The question of a regional statement was

expressly not before the court in Cady since that issue was pending

in the present litigation.

of proposals resulted in an environmental statement

which “failed to furnish information essential to the en-

vironmental decision-making process.” Id. at 87. While

agreeing with the District of Columbia Circuit that

NEPA does not require a “crystal ball” inquiry,“ the

court went on to caution that “agency may not go to the

opposite extreme of treating a project as an isolated

‘single-shot’ venture in the face of persuasive evidence

that it is but one of several substantially similar opera-

tions, each of which will have the same polluting effect

in the same area.” Id. at 88. The court continued

(ibid.):

As was recognized by Congress at the time of passage

of NEPA, a good deal of our present air and water

pollution has resulted from the accumulation of small

amounts of pollutants added to the air and water

by a great number of individual, unrelated sources.

NEPA was, in large measure, an attempt by Con-

gress to instill in the environmental decisionmaking

process a more comprehensive approach so that long

term and cumulative effects of small and unrelated

decisions could be recognized, evaluated and either

avoided, mitigated, or accepted as the price to be

paid for the major federal action under considera-

tion. * * * The fact that another proposal has not

yet been finally approved, adopted or funded does not

foreclose it from consideration, since experience may

demonstrate that its adoption and implementation is

extremely likely.

Thus, although none of the other projects to dump had

final approval, the court nonetheless held that (id. at 89):

7 Natural Resources Defense Council v. Morton, supra, 458 F.2d

at 837.

i Clearly, the projects

are closely enough related so that they can be ex-

pected to produce a cumulative environmental im-

pact which must be evaluated as a whole.

Numerous district court decisions have come to the

same conclusion. In Illinois v. Butterfield, 396 F. Supp.

632 (N. D. III. 1975), one of the claims before the

court was that the cumulative effect of a series of

separate federal actions constituted a “major federal

action” within the meaning of Section 102(2)(C) of

NEPA. The court found that the claim properly stated

“defendants’ failure to prepare an impact statement

with respect to the collective impact of certain actions

as opposed to an impact statement for just particular

actions.” Id. at 640-641. The court then quoted from

the CEQ Memorandum to Federal Agencies on Proce-

dures for Improving Environmental Impact Statements

of May 16, 1972 (id. at 641):

Individual actions that are related either geograph-

ically or as logical parts in a chain of contemplated

actions may be more appropriately evaluated in a

single program statement. * * * The program state-

ment has a number of advantages. It provides an oc-

casion for a more exhaustive consideration of effects

and alternatives than would be practicable in a state-

ment on an individual action. It ensures considera-

tion of cumulative impacts that might be slighted

in a case-by-case analysis. And it avoids duplicative

reconsideration of basic policy questions.

In Natural Resources Defense Council v. Grant, 355 F.

Supp. 280, 288-289 (E.D. N.C. 1973), the district court

held that the environmental impact statement on the

Chicod Creek Watershed Project must “consider fully

* * * the cumulative impact of [that project] and other

channelization projects on the environmental and eco-

nomic resources of Eastern North Carolina” including

the “cumulative effect of sedimentation” and the “cumu-

lative impact of drainage projects upon hardwood t mber

of groundwater resources.”

In Conservation Council v. Costanzo, 398 F. Supp.

653 (E.D.N.C. 1975), the district court considered

whether approval of the construction of a marina re-

quired preparation of an environmental impact state-

ment. In ruling that such an analysis was necessary,

the court noted that, “[u]nder applicable principles of

law, the cumulative effects of any federal action must

be considered in determining the significance of the im-

pact of the federal action on the human environment.”

Id. at 672.

Finally, a recent decision of the District Court for

the District of Columbia considered the adequacy of an

environmental impact statement prepared to analyze the

effects of moving the Naval Oceanographic Program from

its present site in Maryland to Bay St. Louis, Mississippi.

Prince George's County v. Holloway, 404 F.Supp. 1181

(D.D.C. 1975). Judge Gesell held that the statement

was defective because it omitted consideration of other

potential relocations by other agencies to the same gen-

eral site. The court noted (id. at 1186):

[While neither of these projects has received final

approval, they have advanced beyond the point of

conjecture and speculation. * * * In such a situation,

the National Environmental Policy Act requires the

impact statement to consider the cumulative environ-

mental effect that the relatively concurrent federal

actions may have at the common site. One of the

primary purposes of the Act was to prevent the very

type of fragmented and compartmentalized analysis

that occurred here. Instead, the statute directs that

the agency employ a more integrated and compre-

hensive approach which takes account of the overall

effect of the various projects.

These lower court decisions concerning the need for a

comprehensive environmental statement when a number

of federal actions are related is fully consistent with

this Court’s decision in SCRAP II. SCRAP II involved

review of a determination of the Interstate Commerce

Commission not to forbid a general rate increase pro-

posed by the Nation’s railroads, in response to a conten-

tion that inadequate consideration had been given to en-

vironmental factors. Individual rates may be challenged

on the grounds that they are unjust and unreasonable.

49 U.S.C. 15. The ICC proceeding in SCRAP II, how-

ever, was a general revenue proceeding which is initi-

ated when an across-the-board, flat percentage rate in-

crease is proposed with the justification that the rail-

roads’ needs for immediate revenue require it. The is-

sues before the ICC in such a proceeding | are extremely

narrow. 422 U.S. at 323-327.

In light of these circumstances, this Court stated as

to the scope of the environmental statement (id. at 322):

In order to decide what kind of an environmental

impact statement need be prepared, it is necessary

first to describe accurately the “federal action” being

taken. The action taken here was a decision—entirely

nonfinal with respect to particular rates—not to de-

clare unlawful a percentage increase which on its

face applied equally to virgin and some recyclable

materials and which on its face limited the increase

permitted on other recyclables. As in most general

revenue proceedings, the “action” was taken in re-

sponse to the railroads’ claim of a financial crisis;

and the inquiry ** * was primarily into the question

whether such a crisis—usually thought to entitle the

railroads to the general increase—existed, leaving

primarily to more appropriate future proceedings

the task of answering challenges to rates on individ-

ual commodities or categories thereof. The point is

that it is the latter question—usually involved in a

general revenue proceeding only to a limited extent

—which may raise the most serious environmental

issues. The former question—the entitlement of the

railroads to some kind of a general rate increase—

raises few environmental issues and none which are

claimed in this case to have been inadequately ad-

dressed in the impact statement. (emphasis in orig-

inal; footnotes omitted)

This Court then, in light of the “limited nature of the

decision” in the general rate proceeding, approved the

“apparently sensible decision by the ICC to take much

more limited ‘action’ in that proceeding and to under-

take the larger action in a separate proceeding better

suited to the task” (emphasis in original). Jd. at 327,

326.

All the factors considered by this Court in SCRAP II

make clear that the full requirements of NEPA apply

to the actions being taken by the federal petitioners. As

we have seen above, the federal action in the instant case

is not a solitary approval of a mine or the isolated grant

of a right-of-way. Rather, here there have already been

dozens of actions taken and hundreds more are likely in

the near future, These actions are final determinations.

unless it is given authority by Congress, in effect, to

ment to intensive energy development of the Northern

Great Plains. We submit that the federal actions being

taken, involving numerous related actions seriously af-

fecting the environment of an entire region, require the

preparation of a regional environmental impact state-

ment.“

Petitioners rely on a group of decisions to argue that

environmental statements may be restricted to a par-

ticular proposed action even though that action may be

related to other Federal actions. Fed. Br. 36, note 28;

AEP Br. 37-43. Respondents submit that scrutiny of

these decisions merely reveals the extent to which they

depend on their particular facts. As we have seen, the

Court of Appeals for the Ninth Circuit clearly so found

in rejecting the same proposition urged by petitioners. In

so doing, it distinguished its own previous rulings and

held instead that an environmental statement on a specific

federal action—approval of a mining plan—was not suf-

ficient since no broader environmenta! statement. Cady

v. Morton, supra, 527 F.2d at 794-795,

environmental assessment is to be done regarding coal leasing, it

must precede the decision to issue the lease. A failure to conduct a

proper analysis prior to that decision cannot later be rectified by

reconsideration.

e This Court in SCRAP II carefully pointed out the distinction

between the limited role of the ICC in a general revenue proceeding

and the type of decision which another sort of agency can make

“for example, that of an agency deciding whether and where to

build a new prison.” 422 U.S. at 322, note 21. The function of

the Department of the Interior here is far more analogous to that of

the Department of Justice in the case of Hanly v. Mitchell, 460

F.2d 640 (C.A. 2, 1972), cited by the Court. The Department of

the Interior has the power to decide not to issue any lease (see,

for example, the moratorium decided upon by Secretary Morton

in 1973, described in the Affidavit of Secretary Kleppe (App. 189)),

or to determine the system for leasing (see AEP Br. App. la-l4a).

There is no statutory requirement that the Department of the

Interior must issue leases, only broad discretionary power to do so

under regulations of its own adoption. 30 U.S.C. 201(a).

Thus, Trout Unlimited v. Morton, 509 F.2d 1276, 1285

(C.A. 9, 1974), and Sierra Club v. Callaway, 499 F.2d

982, 990 (C.A. 5, 1974), depend heavily on the fact that

Congress had separately approved and authorized fund-

ing for each project at issue in those cases. Moreover,

the court in Sierra Club v. Callaway stressed the ex-

tremely uncertain and long-range nature of the broader

project of which the specific dam was claimed to be a

part and emphasized that the dam was already 72 per-

cent complete. Id. at 988, Similarly, in Sierra Club v.

Stamm, 507 F.2d 788, 794 (C.A. 10, 1974), the court

did not require a broader environmental statement be-

cause the overall project would not be completed until

sometime in the next century. On the other hand, in

Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19-20

(C.A. 8, 1973), based on the particular facts of that

case, the court of appeals required the preparation of

an environmental statement broader in scope than that

which the federal agency had prepared, even though nar-

rower than the plaintiffs had sought.”

AEP petitioners cite (AEP Br. 37), as a common

thread in many of the decisions on which they rely, the

fact that individual projects have often been approved

where the courts found “the proposed project had inde-

pendent utility so that its approval did not commit the

government to other aspects of the overall project, pro-

gram or plan.” The federal petitioners, on the other

hand, agree (Fed, Br. 51, note 38) with the view of the

respondents that instead of looking at some “independent

utility” of the project, “it is more appropriate to look

82 In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275

(C.A. 9, 1973), the question was not directly the scope of the envir-

onmental statements on the three electric power plants, but rather

whether the Department of the Interior should have withheld

approval until its Southwest Energy Study had been completed.

The court there ruled that it was not necessary to wait until all

possible facts were known. This question is not in issue in the

instant case.

to the language of NEPA to determine when an impact

statement is necessary and what the appropriate scope

of that statement should be.” Thus, the federal petition-

ers appear to agree, as SCRAP II strongly suggests,

that, in determining whether a comprehensive environ-

mental statement is required by NEPA, each situation

must be evaluated in terms of its particular facts. This

approach was expressly recognized by the Court of Ap-

peals for the Fifth Circuit in Ecology Center of Louisi-

ana v. Coleman, 515 F.2d 860 (1975). There, the dis-

trict court had ruled that the highway project at issue

was not “improperly segmented for the purpose of envi-

ronmental analysis * * *.” Id. at 870. The court of ap-

peals determined that the district court “came to an

improper conclusion” because there were genuine issues

of material fact so that summary judgment for the de-

fendants was erroneous. /bid.

3. The Council on Environmental Quality, the En-

vironmental Protection Agency, and Other Fed-

eral Agencies Have Interpreted NEPA to Re-

quire the Preparation of Comprehensive Envir-

onmental Impact Statements to Consider Related

Federal Actions

We have shown above that the federal courts have

often held that NEPA requires the preparation of com-

prehensive environmental statements to consider related

federal actions affecting the environment. This has like-

wise been the administrative interpretation of NEPA

by the Council on Environmental Quality, Environmental

Protection Agency, the Department of the Interior, and

numerous other federal agencies.

a. The Council on Environmental Quality and Envi-

ronmental Protection Agency, CEQ and EPA have each

construed the requirements of the National Environ-

mental Policy Act with regard to comprehensive environ-

mental statements. CEQ’s interpretation of NEPA in

this regard, prior to its formalization in the CEQ Guide-

lines, was first stated in 1971. Its General Counsel ex-

plained that a comprehensive statement, rather than an

individual statement, should be prepared in situations

where it is important to “ensure consideration of cumu-

lative effects and make possible a more exhaustive exam-

ination of effects and alternatives than would be possible

in an environmental statement on each individual ac-

tion.” Quoted in Natural Resources Defense Council v.

TVA, 367 F. Supp. 128 (E.D. Tenn. 1973).

The original CEQ Guidelines, issued in April 1971,

similarly stated (36 Fed. Reg. 7724):

The statutory clause “major Federal actions signifi-

cantly affecting the quality of the human environ-

ment” is to be construed by agencies with a view to

the overall, cumulative impact of the action (and of

further actions contemplated).

The present Guidelines contain almost the identical state-

ment and then describe how federal actions can be

“cumulatively considerable“ (40 C. F. R. 1500.6 (a); 38

Fed. Reg. 20551):

This can occur when one or more agencies over a

period of years puts into a project individually min-

or but collectively major resources, when one deci-

sion involving a limited amount of money is a prece-

dent for action in much larger cases or represents

a decision in principle about a future major course

of action, or when several Government agencies

individually make decisions about partial aspects of

a major action.

The present Guidelines then go on to state (40 C. F. R.

1500.6 (d) (1); 38 Fed. Reg. 20552):

Agencies should give careful attention to identifying

and defining the purpose and scope of the action

which would most appropriately serve as the subject

of the statement. In many cases, broad program

statements will be required in order to assess the en-

vironmental effects of a number of individual actions

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

environmental impacts that are generic or common

to a series of agency actions (e.g., maintenance or

waste handling practices), or the overall impact of

a large-scale program or chain of contemplated proj-

ects (eg., major lengths of highway as opposed to

small segments).

The Environmental Protection Agency has likewise

strongly supported comprehensive environmental impacts

statements. In transmitting EPA’s comments on the

proposed guidelines to CEQ, the Administrator of EPA

cited the particular importance of comprehensive state-

ments on interrelated federal actions (Letter from Wil-

liam D. Ruckelshaus to Russell E, Train, in Hearings

on the Administration of the National Environmental

Policy Act—1972, Subcommittee on Fisheries and Wild-

life Conservation of the House Committee on Merchant

Marine and Fisheries, No. 92-94, 92d Cong., 2d Sess.

368-369 (1972)):

Our second suggestion aims at resolving the diffi-

culty of putting into perspective the environmental

effects of closely inter-related activities. This fre-

quently occurs in two types of situations. In the first

situation, major components of a single large project

are analyzed through separate impact statements,

and often the most damaging components are an-

alyzed only after substantial resources have been

committed to other components of the project. In the

second situation, a number of independently pro-

posed projects having cumulative environmental ef-

fects on a small geographical area are analyzed with-

out regard to each other. We therefore suggest that,

to the greatest extent possible in these two types of

situations, over-view statements be required. These

over-view statements would be in addition to the

impact statements on the specific project or com-

ponent, and would provide the necessary perspective

against which the needs, environmental effects, and

alternatives for both the system of projects and the

specific project could be assessed.

b. The Department of the Interior. Even prior to its

recent decision to do regional environmental statements

when taking a number of related actions in the same

geographical area, the regulations of the Department of

the Interior supported the practice of doing comprehen-

sive environmental statements. In the instructions to

carry out “the policy and directives of the National En-

vironmental Policy Act” (Section 516,11), the Depart-

ment elaborated on what should be considered a major

federal action significantly affecting the quality of the

human environment (Department of the Interior Manual,

Section 516.2.5B) :

The statutory clause * * * is to be construed with a

view to the overall, cumulative impact of the action

proposed, and of further actions contemplated. * * *

(1) In considering what constitutes a major Federal

action, bureaus and offices should bear in mind that

the effect of many decisions about a project or com-

plex of projects can be individually limited but cumu-

latively considerable. This can occur when * * * one

decision * * * is a precedent for action in much

larger cases or presents a decision in principle about

a future major course of action, or when several gov-

ernment entities individually make decisions about

partial aspects of a major action.

The environmental statements under this section would

of course have to deal with the cumulative effects of the

actions involved.

CEQ, in carrying out its responsibility to monitor the

effect and functioning of the NEPA process (see p. 98

below), sent to a number of government agencies a set

of questions, including questions regarding the use of

policy and program impact statements. CEQ, Review of

Implementation of the National Environmental Policy

Act Questions and Outline for Response. In response,

the Department of the Interior explained (Answer to

Question 3.02):

Strong emphasis and support has been given bureaus

* * * to utilize various types of program statements

to assist in reducing the scope and size of subse-

quent statements, particularly where a large number

of smaller actions are contemplated or where cumu-

lative impacts and program alternatives are inap-

propriately analyzed on a project-by-project basis.

The Department then listed some 18 “major program

type statements“ which it had prepared or planned

83 The Department listed the following environmental statements:

Bureau of Reclamation :

Atmospheric Water Resources Program

Colorado River Basin International Salinity Control Project

Fryingpan-Arkansas Project

Columbia Basin Project

Bureau of Land Management:

Timber Management Program

Federal Coal Leasing Program

Livestock Grazing Management Program

Upland Oil and Gas Leasing Program

OCS Accelerated Oil and Gas Leasing Program

Fish and Wildlife Service:

Sport Hunting of Migratory Birds

Wildlife Refu Management Program

Bureau of Mines:

Mine Subsidence Control Program

Mine Fire Control Program

Southwestern Power Administration :

Operating and Maintenance Program

Bonneville Power Administration :

Annual Construction Programs

[Footnote continued on page 67]

to prepare during fiscal years 1975 and 1976. The De-

partment indicated that comprehensive statements were

of two types, depending on the particular program in-

volved: “(1) nationwide program statements at the

highest order of scale, (2) area or regional statements

with a specific geographic extent * * *” (Answer to

Question 3.01). The Department responded as to the

5 of comprehensive statements (Answer to Question

[Program environmental statements have served

the decision process in Interior. The service may

not always be dramatic, but it covers an important

level in decisionmaking. They provide the only large-

scale environmental analyses of program-v/ le regu-

lations, long-term cumulative program effects, and

program alternatives. Because of their scope, they

tend to focus environmental analyses on broader

issues or issues of a longer term nature. For exam-

ple, the Eastern Powder River Coal Development

statement produced greater awareness of water prob-

lems in Wyoming than individual statements on min-

ing plans would have done.

We believe also that we can see a definite improve-

ment in the planning process itself as well as in plan

implementation because of program environmental

statements. This is because the program statement

focuses planning attention much more forceably on

repetitive, aggregative, and cumulative problems.

Particular agencies of the Department of the Interior

expressed similar use of, and enthusiasm for, comprehen-

sive environmental statements. The National Park Serv-

ice stated (Answer to Question 3.03) :

83 [Continued]

Geological Survey :

Santa Barbara Channel Oil and Gas Development

Southeastern Idaho Phosphate Development

Bureau of Indian Affairs:

Crow Reservation Coal Development

Program EIS’s have and will continue to examine

a wide range of alternatives upon which a decision

can be made. Further, the program statement is the

appropriate level for examining interrelated actions

as well as cumulative impact. Project level statements

speak primarily to impacts on a specific site and

therefore do not aid in decisions which must consider

broad issues.

Question 3.05 asked: “Does the agency use the policy

or program EIS (1) to help assess alternatives, (2) to

help assess cumulative effects of similar or otherwise

related projects involving one or more agencies, (3) to

serve as guides to subsequent project-level EIS’s, or (4)

to serve several or all of such purposes?” The National

Park Service replied that it used the “program environ-

mental statement to serve all of the purposes outlined

in the question.”

The Bureau of Reclamation stated that it is “utilizing

the overall project environmental statement to look at

cumulative impacts of its larger projects” (Answer to

Question 3.02). The Bureau of Outdoor Recreation said

that it (Answer to Question 3.05):

used the policy EIS to help assess cumulative effects

of similar or otherwise related projects involving

one or more agencies. In view of the interrelation-

ships of outdoor recreation programs, facilities, and

services of the major Federal land managing agen-

cies, the cumulative effects of the combined efforts

and actions of these agencies were given serious

consideration and assessed in terms of their total

effect, and through the EIS process, these issues

were addressed and decisions made thereon.

In sum, not only has the Department of the Interior

adopted the position of the respondents, that broad-scale

analysis of cumulative effect must be prepared, but

even has discovered that they have exactly that utility

which respondents have claimed (see pp. 89-95 below).

The “greater awareness of water problems in Wyoming”

produced by the Eastern Powder River Statement is

precisely the sort of understanding which respondents

have argued could be produced only by comprehensive

environmental statements rather than individual, site-

specific analyses.

c. Other Federal Agencies. Many other departments

and agencies have adopted a policy of employing broad,

comprehensive environmental statements. The circum-

stances calling for such statements depend of course on

the nature of the federal action being considered and

thus on the function of the particular agency. For ex-

ample, the Department of Housing and Urban Develop-

ment has adopted the following regulation (38 Fed. Reg.

19185) :

(5) Evaluation of comprehensive activities.

Individual actions that are related either geo-

graphically or as logical parts in a composite

of contemplated actions may be more appro-

priately evaluated in a single environmental

clearance. For example, several subdivisions

may form a large new development. Likewise,

a comprehensive project may be composed of, or

include, several interrelated activities, e.g., de-

velopment of a new community or redevelop-

ment of a center city area. In these cases, and

where feasible, HUD offices should aggregate

individual activities into a larger package and

environmental evaluation shall concentrate on

the broad and cumulative impacts of the larger

activity, as well as the project’s specific im-

„ We will discuss below (pp. 102-108) whether the scope of the

Eastern Powder River Statement is in fact adequate for proper

analysis of the vast environmental impacts of coal development in

the Northern Great Plains. Nonetheless, whether or not the scope

of the statement is sufficient, it is conceded by the Department to

constitute a useful, regional analysis.

pact of component activities to the extent

known.

The Forest Service employs what it terms a “3-tier

approach.” See Statement of John R. McGuire, Chief,

Forest Service, National Environmental Policy Act Over-

sight Hearings, supra, pp. 39-40. The broadest type of

environmental statement is the program document. The

second tier is the unit plan, based on the Forest Service’s

land use planning system under which “lands are di-

vided into large planning areas which are specific geo-

graphic areas containing social and physical resources

and land characterictics of a generally similar nature.

* * * The unit plan becomes the basis for all action

within the specific geographic area. It provides a guide

as to what, where, and when various resource activities

will be carried out.” Id. at 40. The third tier is the

site specific or project environmental statement. Mr.

McGuire went on to distinguish between the uses of the

broader statements and the project statement, noting that

“a project statement can address site specific factors but

not the cumulative effects of many different types of

projects.” Id. at 41. Forest Service regulations encour-

age use of broad environmental statements, noting that

“program statements will be appropriate in order to as-

sess the environmental effects of a number of individual

actions in a given geographical area.” Forest Service

Manual, Section 8411.43. “A programmatic approach has

the advantage of permitting the analysis of cumulative

effects or possible synergistic effects of a series or group

of actions.“ Id., Section 8411.44.

The Army Corps of Engineers informed CEQ (Answer

to Question 3.02) :

Cerps regulations call for the preparation of com-

posite environmental statements which group sev-

eral similar projects which serve the same general

purpose because of their relationship geographically

or involve common or similar environmental im-

pacts. * * The purpose of these composite state-

ments is to reduce the number of statements and

address the cumulative impacts of the projects as

a group rather than on an individual basis.

Asked how the Corps employs a policy or program en-

vironmental statement (Answer to Question 3.05), the

Corps responded:

For selected program EIS’s, covering a variety of

Corps activities, alternatives are discussed and

evaluated to determine general trends and cumula-

tive impacts induced by the project or on similar

projects as a group rather than on an individual

basis. The significance of the regional, national and

international impacts produced by the project sup-

ported by information regarding the relative scarc-

ity or abundance of the environmental resources in

question is also discussed and evaluated.

The Army noted that it encourages preparation of “[p]ro-

gram or generic EISs wherever possible” (Answer to

Question 3.01) and said that, in contrast to project

environmental statements, the “policy or program EISs

serve to bring together the many facets of an action and

enable the overall environmental impact to be assessed“

(Answer to Question 3.03).

The Department of Transportation has taken the posi-

tion that environmental statements (Department of

Transportation, Procedures for Considering Environ-

mental Impacts (Section 7.h, 39 Fed. Reg. 35238) ):

must be broad enough in scope to avoid segmenta-

tion of projects and to insure meaningful considera-

tion of alternatives. In certain circumstances, state-

ments will be required for broad programs in order

to assess the environmental effects of a number of

actions in a geographical area, the environmental

impacts that are generic or common to a series of

actions, or the overall impact of a chain of con-

templated projects.

The Environmental Protection Agency urges prepara-

tion of environmental impact statements for total pro-

grams which include “component projects” and points

out that even where there are “a number of minor,

environmentally insignificant actions,” the “cumulative

environmental impact of all of these actions shall be

evaiuated” if the minor actions are “similar in execu-

tion and purpose, during a limited time span and in the

same general geographic area.” 40 Fed.Reg. 16817. The

National Aeronautics and Space Administration has

carried out its responsibilities under NEPA through “in-

stitutional” and “program” statements, both of which

“tend to be ‘broad program statements’ by the CEQ

definition * .“ 39 Fed. Reg. 13001. The Department

of Commerce, which has established guidelines for pre-

paring policy and program as well as project environ-

mental statements, described the utility of comprehensive

statements (Answer to Question 3.03): “A policy or

program EIS in the development and enforcement of

administrative or regulatory controls could be of major

assistance in projecting the social and economic costs

along with the purported environmental benefits of the

proposed action.”

In short, virtually a! of the agencies of the federal

government whose actions frequently affect the environ-

ment have perceived the need, in order to carry out

the requirements of NEPA, of preparing comprehen-

sive environmental impact statements to enable them to

evaluate the broad implications of cumulative actions,

whether they are related geographically or in other ways.

Thus, the present policy of the Department of the In-

terior simply brings it into conformity with the general

practice of the federal government.

C. THE NATIONAL ENVIRONMENTAL POLICY

ACT REQUIRES THE PREPARATION OF A

REGIONAL ENVIRONMENTAL STATEMENT

CONCERNING COAL DEVELOPMENT IN THE

NORTHERN GREAT PLAINS BECAUSE OF THE

NUMBER AND CLOSE RELATIONSHIP OF THE

FEDERAL ACTIONS BEING TAKEN

We have seen above that the language, history, and

judicial and administrative interpretation of NEPA is

that comprehensive statements are required concerning

related federal actions, We will now show that the nu-

merous federal actions concerning coal development in

the Northern Great Plains constitute such a situation re-

quiring preparation of a comprehensive environmental

impact statement.

1. The Federal Actions Involved in Coal Develop-

ment of the Northern Great Plains Are Related

in a Manner Requiring Preparation of a Com-

prehensive Environmental Impact Statement

The Guidelines of the Council on Environmental Quality

state that “broad program statements will be required in

order to assess the environmental effects of a number of

individual actions on a given geographical area * ,

or environmental impacts that are generic or common to

a series of agency actions * * *, or the overall impact

of a large-scale program or chain of contemplated proj-

ects * .“ 40 C.F.R. 1500.6 (d) (1); 38 Fed. Reg.

20552. Thus, the Guidelines state that a comprehensive

environmental statement is required when federal ac-

tions are geographically, environmentally, or program-

matically related. Respondents submit that the numerous

federal coal and coal-dependent actions in the Northern

Great Plains region are related under each of these

criteria.

The geographic relationship is clear. All the federal

actions involve coal development in a particular geo-

graphic area. As we will see below (pp. 102-108), the

appropriate region is the area of the Fort Union and

Powder River coal formation.

The second type of relationship, the environmental re-

lationship, is probably the most crucial in the context of

this case. The numerous projects resulting from the

past and proposed federal action in the Northern Great

Plains will produce a wide variety of cumulative en-

vironmental impacts.

For example, the court of appeals properly referred

to the cumulative effect of coal-related projects on the

availability of water. Fed. Reg. App. A, p. 38A, note

28. The climatological characterization of most of the

Northern Great Plains is semi-arid to arid. NGPR Pro-

gram Report, p. 45. Much of the present water supply

depends on subsurface sources, whether carried in shal-

low aquifers which often rest on the impermeable beds

of coal, or contained in deep rock formations such as

the Madison Limestone formation underlying the Powder

River area of Wyoming. Eastern Powder River State-

ment, pp. I-195 to I-217. Recharge of these waters

depends on infiltration of precipitation and movement

of waters between aquifers. Id. at I-217 to I-229. Re

moval of the coal aquifers through mining destroys that

shallow resource. In areas where grasses and hay

meadows rely on subsurface irrigation provided by the

coal aquifers, there will be an adverse, probably de-

structive, impact on the vegetation.

Coal-related development requires huge amounts of

water. Electric power plants consume for cooling pur-

poses approximately 10,000 to 12,000 acre feet of water

per year, for every 1000 megawatts. NGPR Program

Report, p. 7). Since these waters are evaporated, they

are lost for other use. Coal gasification plants depend on

vast quantities of water, approximately 10,000 acre feet

per year, for the gasification process. NGPR Program

Report, p. 72. It also is lost through evaporation. Slurry

pipelines for the transportation of coal use water to

carry finely ground coal particles from point of ori-

gin to the destination, where the coal is dried by

evaporating the water and is then burned. The pro-

posed coal slurry pipeline from the Powder River

Basin in Wyoming to a power facility in Arkansas is

estimated to require 6.5 billion gallons of water per

year which, it is proposed, will be obtained from the

Madison Formation, Washington Post, December 1,

1975, p. A-1. This water will not return. Increases

in population will mean additional water consumption for

various domestic and commercial uses.

Water is a regional resource. For example, the Madi-

son Formation “extends from Wyoming into Montana,

North and South Dakota, portions of Nebraska, north to

Canada and south to Colorado and Utah.” Underground

Water in the Madison Limestone, reprinted in Greater

Coal Utilization, Joint Hearings of the Senate Com-

mittees on Interior and Insular Affairs and Public

Works, S. No. 94-18, 94th Cong., Ist Sess. 447 (1975).

Similarly, the Yellowstone River and its tributaries drain

the coal areas of northeastern Wyoming and southeastern

Montana. The Upper Missouri River drains the entire

Northern Great Plains region. Water is obviously a

finite resource within any given area and particularly

in a semi-arid region like the Northern Great Plains.

Each commitment of water resources affects future pos-

sible commitments. Each project which consumes large

quantities of water has an effect far beyond its own

scope, both physically, in terms of water circulation and

recharge, and temporally, since it may preclude some

other form of development in the future. The consump-

tion of water by one project will mean that less water

is available for agriculture, wildlife, human consumption,

and other industrial projects.

If all related federal actions are not considered to-

gether, the analysis of the impact of a particular project

and the alternative uses of water will be impossible.

One project all by itself may cause little harm. On the

other hand, numerous projects may mean that agricul-

tural and wildlife uses downstream will be severely

interfered with. The combination of projects may re-

quire a rational system of water allocation which will

maximize use of the water to protect the competing uses

to the maximum extent possible. A comprehensive analy-

sis is essential if this alternative, of allocating water to

priority use, is to be fairly considered. Similarly, only

a comprehensive analysis is likely to lead to require-

ments that projects use the best technology available to

reduce consumption of water.

For these reasons, the scope of analysis must extend

beyond the particular project to others using substantial

amounts of water from the same sources. Not only NEPA

but common sense requires such analysis.“

Strip mines, power plants, and coal gasification plants

all cause water pollution if the water used by them is

discharged so that it may enter ground water or streams.

NGPR Program Report, pp. 91-95. This pollution is

obviously cumulative if several projects discharge into

the same body of water. Again, if a single project is ana-

lyzed it may well be found to cause little damage. Taken

together, the opposite may be true. The result of a

comprehensive analysis may well be to determine what

level of pollution will be allowed and, in effect, to allocate

it so that only the highest priority projects are per-

mitted. Alternatively, such cumulative analysis might

lead to approving only projects which eliminate or at

least minimize pollution discharges.

85 The need for regional consideration of water resources has been

expressly recognized by the Department of the Interior. As we

quoted above, the Department told CEQ that “the Eastern Powder

River Coal Development Statement produced greater awareness

of water problems in Wyoming than individual statements on

mining plans would have done.” Answer of the Department of the

Interior to CEQ Question 3.03.

Air of course moves regardless of political boundaries

or artificial lines. Air pollution therefore results not

only from the power plant in the immediate vicinity,

but from others upwind, and increases with each addi-

tional facility. The extent of pollution cannot be de-

termined by looking at only one project, or even at only

one area bounded by maps rather than meterology.

Again, a comprehensive analysis might lead to establish-

ing a level of pollution which would be permitted and

allocating it rationally or requiring especially strict

pollution controls to prevent pollution from occurring.

The various projects are also interrelated environ-

mentally because they increase population in the region.

This results not merely from the employees themselves

but their families, the numerous people who are needed

to provide commercial and governmental services for

them, and their families. Again, the cumulative effect of

the projects is likely to be far different than for any

individual project alone. Similarly, comprehensive analy-

sis is likely to lead to consideration of far different

alternatives such as tax and grant programs to provide

the greatly increased need for education, law enforce-

ment, and social services, the adoption of land use plan-

ning, and the creation of new towns.

These so-called secondary impacts are of great im-

portance. EPA has pointed out (Hearings on the Ad-

ministration of the National Environmental Policy Act

—1972, supra, p. 372):

In setting forth the range of environmental con-

siderations appropriate for a particular type of

project, the conceptual framework must go beyond

obvious questions such as air and water pollution.

: * * Impacts on population patterns or commun-

ity behavioral patterns may affect the quality of the

human environment much more than impacts on air

and solid waste.

The CEQ Guidelines specifically require consideration of

such secondary impacts in environmental statements. 40

C. F. R. 1500.6 (b); 38 Fed. Reg. 20551.

The Eastern Powder River Statement admits that the

secondary effects of coal development will be irrevocable

(p. I-859) :

Development of coal resources in the Eastern Pow-

der River Coal Basin of Wyoming will produce a

region completely different from that existing at

present. Industrial history suggests that changes

will develop over time and will be of very long term

—for practical purposes, permanent.

Both short-term and long-term development and use

of regional resources will change long-term produc-

tivity of the basin. From a typical western ranch-

ing area, it will be transformed into an industrial-

ized region with mining of coal and its utilization

becoming the dominant industry and financial foun-

dation.

The cumulative impact of the various projects may

even drastically affect the very climate of the region.

According to BLM’s recent Draft Environmental Impact

Statement for the Proposed Reservoir on the Middle Fork

of Powder River (p. 8-33):

The coal liquefaction plants would likely result in

some minor changes in the micro-climate of the im-

mediate plant areas, such as slight increases in air

temperature and humidity.

In conjunction with other proposed and projected

development in the Eastern Powder River Basin,

climate could be affected to a significant degree.

Some evidence indicates that changes of atmospheric

particulate loading and alteration of the earth-

atmospheric energy balance may contribute to crea-

tion of drought conditions in semiarid climates.

This disastrous effect on an area with already insufficient

rainfall would not be the result of a single industrial

plant. However, the cumulative effect of a group of en-

ergy facilities may be a vast desert.

We have noted that comprehensive analysis of envi-

ronmental impact is necessary to consider various alter-

natives to mitigate the environmental effects of numerous

coal-related projects. This kind of analysis of the cumu-

lative effect could also lead to a determination that coal

should be exported from the region rather than converted

to electricity or gas within it. Such an export policy

would avoid most of the consumption of water, air and

water pollution, increased population, and changes in

climate. However, it is unlikely even to be considered

unless the wtality of coal development is analyzed al-

together.

The Department of the Interior has itself recognized

the inadequacy of project-by-project analysis. Of course,

its determination to prepare regional statements reflects

such a determination. Moreover, an earlier report of the

Northern Great Plains Resources Program asked the

question: “Is the impact of two mines or powerplants in

the same areas twice as great as the impact of one, or

is it larger?” NGPR Program Draft Interim Report, p.

V-2. Similarly, as we quoted earlier, Robert Jones of

the Bureau of Land Management recently told the House

Merchant Marine and Fisheries Committee that “[o]ne

project in the area might have acceptable environmental

consequences, but, if you have border-to-border projects

all the way across you have a substantially different en-

vironmental situation.” National Environmental Policy

Oversight Hearing, supra, p. 31.

Third, the federal actions involving coal development

in the Northern Great Plains are programmatically re-

lated. Secretary of the Interior Kleppe has recently ad-

mitted this relationship. As he explained to the Senate

Interior Committee, “mining coal from one or more leases

might have substantially broader significance than the

direct impact of the particular lease operations and may

set the course of development for geographic areas encom-

passing both Federal and non-Federal lands” (see App.

A below, p. 3a).”

There is a very close inter-relationship between all the

various proposals for exploiting the area’s coal. All the

proposals are based on strip mining large quantities of

coal and then either (1) having mine-mouth plants con-

vert the coal into electricity, gas, liquid fuels or petro-

chemicals and using electric transmission lines, pipelines

or other methods to transport these products to distant

markets or (2) transporting the coal by railroad or

slurry pipeline to power plants and other facilities in

other areas of the country. As we have seen, tremendous

quantities of water will be required to carry out any of

these proposals, thus necessitating the construction of

dams and reservoirs. The network of railroads, trans-

mission lines, aqueducts and pipelines which is being

built will of course serve numerous mines and facil-

ities.“

The argument of the federal petitioners that the only

common thread between the federal activities in the

Northern Great Plains is that “they all have to do with

coal mining“ (Fed. Br. 31, note 24) simplistically ig-

% Judge McKinnon, dissenting below, noted the situation where

“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.’” Fed. Pet. App. A, p. 61A. In

such a case, Judge McKinnon conceded, “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.” Jd. at 62A. Subse-

quent to the court of appeals’ decision and Judge McKinnon’s dis-

sent, Secretary Kleppe has admitted such a ripple effect as to coal

mines in the Northern Great Plains in the statement quoted in the

text.

„ Aqueduct Report, pp. 3-12; Powder River Basin Report, p. 9.

nores the obvious fact that coal has value only as an

energy source. While the key initial decision is to ap-

prove coal mining, from this all else follows. Once the

coal is mined, it will be used.

The Department of the Interior certainly recognizes

this fact. The NGPR Program Report, as we have seen

(pp. 13-14 above), looked at the various possible uses

for coal within the study region, concluding that coal

development would be likely to result in as many as 25

electric power plants and 41 coal conversion plants. The

transportation of coal outside of the region would of

course require the installation and use of railroads or

pipelines. The transmission of coal converted to energy

would require erection of transmission lines or the lay-

ing of pipelines. NGPR Program Report, pp. 2, 33-38.

The Eastern Powder River Statement notes that by 1990

that coal basin will probably contain 14 mines, 6 power

plants, 2 coal gasification plants, 225 miles of new power-

line, 150 miles of new railroad, and will be the starting

point for 1040 miles of slurry pipeline. Eastern Powder

River Statement, supra, p. I-56. This development will

require at least 90,000 acre feet of water per year. Id.

at I-58. The argument of the federal petitioners flies in

the face of not only reality but also of the Department

of the Interior’s own analyses.“

es The regulations of the Bureau of Land Management expressly

direct that environmental statements must look beyond the ind

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