Amicus Curiae Brief — Lujan v. National Wildlife Federation

In the Supreme Cour

\ i RIDED

APR 2 Be

No. 89-640

m<_

Ocrosmer Term, 1989

Manuel Lujan, Jn., Secretary of the locerior, er al.,

Petitioners,

VS.

NaTIONAL Wipure PEDERATION, et al.,

*Counsel of Record

Bowne of Lee Angee. ine. Lew Pome (215) "4). 000

Telephone: (213) 736-7830

(CONTINUED ON INSIDE COVER )

BEST AVAILABLE COPY

BEST AVAILABLE COPY

3. Whether the mere opening of an agency’s files to

blic inspection constitutes compliance with the

ational Environmental Policy Act?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................ i

INTEREST OF AMICI................. 1

STATEMENT OF THE CASE............... 5

SUMMARY OF ARGUMENT................ 5

Gs cc coc eceesecccecorecs 6

I. FEDERAL AGENCIES MAY NOT

ESCAPE THE PROCEDURAL REQUIREMENTS

OF NEPA OR FLPMA BY G THAT

PARTIES PROVE STANDING TO CHALLENGE

EACH INDIVIDUAL DECISION MADE UNDER

A NATIONAL PROGRAM IN ORDER TO

CHALLENGE AGENCY COMPLIANCE

6

A. BLM seeks to portray a national

program as a series of separate

unconnected decisions........... 6

B. NWF need not establish standin

to challenge the BLM program

producing members injured by each

of the program’s implemeniations .... . 8

TABLE OF CONTENTS

Page

Il. BLM IS SEEKING TO AVOID JUDICIAL

REVIEW OF ITS COMPLIANCE WITH

FEDERAL STATUTES BECAUSE ITS

PROGRAM IS NATIONAL IN SCOPE... 13

A. BLM is attempting to insulate from

review its compliance with NEPA and

FLPMA on the grounds that its program

affects many acres of land....... 13

B. Judicial enforcement of the

requirements of NEPA and FLPMA does

not violate separation of powers

op 15

Il. PROCEDURAL INJURY UNDER NEPA OR

FLPMA IS NOT THE EQUIVALENT OF

INFORMATIONAL INJURY UNDER THE

FREEDOM OF INFORMATION ACT

iv

TABLE OF AUTHORITIES

Page

CASES

Adickes v. Kress,

See TEED coccccceccoceccs 13

Andrus v. Sierra Club,

422 U.S. 347 (1979)... 6. es 15, 22

Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150 (1970). . . 11

Austin, et al v. Michigan State

Chamber of Commerce, No 881569 (March 29, 1990). . . 12

Baker v. Carr,

) S| PTT rTrrrrere 17

Baltimore Gas & Electric Co. v.

Natural Resources Defense Council,

Ge We EP ED cococccccsccccess 15

Celotex Corp. v. Catrett,

— 13

Clarke b. Securities Industry Association,

I 10

Commonwealth of Massachusetts, et al v. Watt,

716 F.2d 946 (ist Cir. 1983)............ 24

Duke Power Co. v. Carolina Environmental

Study Group, Inc., 438 U.S. 59 (1978)... .. 11, 12, 13

Flast v. Cohen,

eee 9

Flint Ridge Development Co. v. Scenic Rivers

Association, 426 U.S. 776 (1976).......... 16

TABLE OF AUTHORITIES

CASES -- Continued:

FWIPBS, Inc. v. City of Dallas,

110 S. Ct. 596 (1990)... cee

Garcia v. San Antonio Metropolitan Transu

Authority, 469 U.S. 528 (1985)... ........

Gladstone, Realtors v. Village of Bellwood,

441 US. 91 (1979)... 2. eee

Hunt v. Washington State Apple Advernsing

Comm'n, 432 U.S. 333 (1977)... 6 6 ee

Internanonal Union, United Automobile,

Aerospace, and Agncultural Implement

Workers of America, et al, v. Brock,

477 U.S. 274 (1986)... ........

Kleppe v. New Mexico,

426 U.S. 529 (1976)... . © 2. ee ees

Kleppe v. Sierra Club,

427 U.S. 390 (1976). .....

Linda RS. v. Richard D., 410 U.S. 614 (1973). .

Nanonal Wildlife Federation v. Burford, et al,

878 F.2d 422 (D.C. Cir. 1989).........

Natural Resources Defense Council v. Morton,

458 F.2d 827 (D.C. Cir. 1972). ...... '

Public Citizen v. Speed

Justice, 109 S. Ct. 2558 (1989)........

Robertson v. Methow Valley Cumzens Council,

109 S.Ct. 1835 (1989) en

13

13

12

11, 19

10

19

ll, 23

2, 15, 23, 24

vi

TABLE OF AUTHORITIES

Page

CASES --Continued:

Sierra Club v. Morton,

Sp Ge WE ED cccccccccceccss 11

Swnon v. Eastern Kentucky Welfare Rights Org.

GP ee SED wo ccccccccccece: 10

State of California v. Block,

690 F.2d 753 (9th Cir. 1982)............ 14

Unued States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669 (1973). 10, 13

Valley Forge Christan College v. Americans

United for Separation of Church & State, Inc.,

cs 9, 10

Warth v Seidin,

422 U.S. 490 (1975). . ae 10

CONSTITUTION, STATUTES, REGULATIONS AND

RULES:

Administrative Procedure Act, 5 U.S.C. 551 ef seg.

, 6 10

TABLE OF AUTHORI.ES

Page

CONSTITUTION, STATUTES, REGULATIONS

AND RULES -- Continued:

Clean Air Act,

GB Uae PUES GO GURD oo ccc ccccccces 18

Clean Water Act,

SD UA, ESSE, OBR 2 wc cece ccecss 18

omp' Environmental Response, Cleanup, and

42 USC. 9601 Ws cccccccceseses 18

1g, 7 leenereeteatal

Freedom of Information Act, 5 U.S.C. 552....... 22

National Environmental Policy Act,

TB ULB, GREE GMB. cc ccc ct ccecs passim

RE Tee ee 15

40 C.F.R. §1500.3 (1989)... 2.2... 6... 15

40 C.F.R. §1502.20 (1989)... ......... 15

40 C.F.R. §1506.6 (1989)... .......... 24

40 C.F.R. §1507.1 (1989)... .. 2... 4.. 1S

40 C.F.R. $1508.28 (1989)... ......... 15

TABLE OF AUTHORITIES

Page

BOOKS, TREATISES, LAW REVIEWS, OTHER

PERIODICALS

The War Powers Doctrine and the Political

Question Doctrine, 49 U.Colo.L.Rev. 65 (1977)... 17

Bureau of Land Management -- California: —-

Report Fiscal Year 1989...........45:

1969 U.S. Code Cong. & Admin. News 2751, et seq..

.2

1

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MANUEL LUJAN, JR.,

Secretary of the Interior, et al.,

Petitioners,

VS.

NATIONAL WILDLIFE FEDERATION, et al.,

Respondents,

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI

The States filing as amici have a vital interest in

preserving their ability to participate in the National

Environmental Policy Act (42 U.S.C. $4321 ef seq.;

"NEPA") process and the Federal Land Policy and

Management Act (43 U.S.C. 1701 et seq.; "FLPMA")

process. The Bureau of Land Management ("BLM")

misconstrues the affidavits of the respondent to hide its

true goal: to insulate its actions from judicial review.

2

BLM seeks nothing less than to overturn decades of

development of the standing doctrine to thwart judicial

challenges of its Congressionally-mandated duty to

comply with NEPA and FLPMA. Such a result would

be unfortunate, because, as this Court stated last year,

"NEPA ensures that important effects will not be

overlooked or underestimated only to be discovered

after resources have been committed or the die other-

wise cast." +/

NEPA has special importance for the States because

federal actions, both on and off federal lands, sig-

nificantly affect state resources. The effects are espe-

cially felt in western States, where much of the land

and natural resources are federally-owned and ma-

naged.2/ In recognition of these special state interests,

Congress specifically provided, in Section 102 of NEPA,

that States and local governments be included in the

federal environmental analysis process.?/

1. Robertson v. Methow Valley, 109 S.Ct. 1835, 1845

(1989).

2. BLM manages 17,204,689 acres of public

land in California alone. Bureau of Land

Management -- California: Annual Report Fiscal

Year 1989 at 41.

3. The legislative history of NEPA is also full

of references to the need to involve state and local

governments in the environmental planning and

decisionmaking process. H. Rep. No. 378, 91st Cong.,

1st sess. 3-4; H. R. Conf. Rep. No. 765, 91st Cong.,

3

The NEPA process is the critical avenue through

which States may examine and assert their interests in

federal decisions. The implementation of FLPMA is

another important means for States to participate in

this process. The economic and environmental! burdens

of mitigating the consequences of federal actions in-

creasingly fall on state and local governments. NEPA’s

environmental impact research, review and disclosure

procedure is essential to the States’ abilities to plan for

and help ameliorate the consequences of federal ac-

tions.

The ability to bring suit under NEPA and FLPMA

is of special concern to the States because of this fiscal

and environmental impact on state resources. The

States often rely on federal statutes such as NEPA and

FLPMA to challenge decisions by federal agencies such

as BLM. If BLM is permitted to shield its decisions

from judicial review by misconstruing the procedural

requirements of these statutes, it would unjustifiably

restrict the ability of States in the future to seek redress

Ist sess. 8-9; reprinted in 1969 U.S. Code Cong. &

Admin. News 2751, 2753-54, 2769. | NEPA’s

implementing regulations specifically require that

draft environmental impact statements be circulated

to appropriate state agencies. 40 CFR §1503.1

(1987).

7,

through the federal judiciary for the "overreaching" of

federal agencies.*/

The States are particularly interested in the outcome

of this action because of the potential for abuse

shown by BLM of basic NEPA and FLPMA law. In

National Wildlife Federation v. Burford, et al., 878 F.2d

422 (D.C. Cir. 1989), cert. granted, No. 89-640, (January

16, 1990), BLM embarked upon a coordinated pro-

gram to remove federal protections from public lands

to open these lands to mining and mineral leasing and

oil and gas exploration. Although many of these lands

have value as recreational and wilderness areas, and al-

though the program was national in scope, BLM failed

to conduct a programmatic environmental impact

statement ("EIS"), to develop land use plans, and to

notify Congress before deciding to proceed with ter-

minating the federal protections nationwide. No notice

was given of this nationwide program, no hearings were

held, and no comments were solicited. Instead, its full

impact was hidden behind a screen of individual deci-

sions, diverting attention from the impact of the nation-

al program.

Amici urge this Court to reject the federal peti-

tioner’s revision of established standing doctrine under

4. Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528, 567, (1985) (Powell, dissenting. )

—

5

NEPA and FLPMA, and to support the opportunities

to participate in federal agency environmental analyses,

so as to ensure that federal agencies do indeed take a

"hard look" at the consequences of their programs on

the States in which they will be carried out.

STATEMENT OF THE CASE

Amici adopt respondent’s statement of the case.

SUMMARY OF ARGUMENT

1. A federal agency cannot shield its decisions from

judicial review by characterizing a single national

program as a series of isolated decisions. BLM’s

actions in this case stem from one central policy

decision, and the challenging party should not have to

produce members injured by each of the program's

implementations to prove standing.

2. No separation of powers principles are violated

by judicial enforcement of NEPA and FLPMA. A

federal agency may not escape judicial review merely

because a program is large in scope and affects many

acres of land. BLM is seeking to strip federal courts

of their traditional role of ensuring that federal agencies

comply with their Congressionally-mandated duties.

6

3. The injury caused by a federal agency’s failure

to comply with the procedural requirements of NEPA

and FLMPA is the loss of the opportunity to

participate in the federal decision-making process. This

harm is not the equivalent of informational injury under

the Freedom of Information Act, and cannot be

remedied simply by an agency opening up its program

files after a decision has been made.

ARGUMENT

FEDERAL AGENCIES MAY NOT ESCAPE THE

PROCEDURAL REQUIREMENTS OF NEPA OR

FLPMA BY REQUIRING THAT PARTIES PROVE

STANDING TO CHALLENGE EACH INDIVIDUAL

DECISION MADE UNDER A NATIONAL PROGRAM

IN ORDER TO CHALLENGE AGENCY

COMPLIANCE

The federal agency petitioner’s brief is nothing more

than a thinly veiled attempt to evade judicial review of

its failure to act under NEPA and FLPMA by altering

the traditional rules of standing under environmental

Statutes. Its deconstruction of the respondent’s

affidavits can not hide its ultimate aim of precluding

those with standing from insisting that key NEPA and

FLPMA procedures are followed.

A. BLM seeks to portray a national program as a

series of separate, unconnected decisions.

This federal agency’s characterization of a truly

national program as a set of unconnected local deci-

sions is of great concern to the States. Of greater

concern is the implication that a party must establish

8

standing to challenge such a program by proving its

standing to sue on each individual implementation of

the program. Such a drastic revision of standing

requirements could seriously hamper the ability of both

individuals and States to stop legal violations by federal

agencies.

To thwart the application of established standing

rules, and thus to insulate its actions under NEPA and

FLPMA from legal challenge, the federal agency

petitioner disingenuously characterizes its national

program as “a vast array" of individual decisions.

Fed.Br.(i). Despite petitioner’s lengthy narrative of the

history of federal land use policy, the actions at issue in

this case were not unrelated, individual decisions but

arose from a deliberate program.

The record in the proceedings below is full of

references by BLM to its withdrawal revocations and

classification terminations as a program. See, e.g.,

Department of the Interior, BLM Withdrawal Review

Program: A Report of Progress to the National Public

Lands Advisory Council, (1985) J.A. 51-54; and

Edwards Affidavit 1B, Def.Exh. 21, manual providing

guidance for implementation of the Withdrawal Review

Program, including Program Direction, Completion

Schedule, Program Priorities, Progress Reporting, and

Quality Control. (Emphasis added.) See also Pl. Exh.

1, 2, 3, 11, 17, 20, 70, as well as Edwards Affidavit 1C,

Def. Exh. 8, all of which are instances where the

government refers to withdrawal revocations and

9

classification terminations as a single coordinated

program.

The District Court specifically found that these

actions constituted a program. That court, even on

remand, defined the proposal as a "program con-

cern{ing] the termination of land classifications and the

revocation of land withdrawals." Fed. Pet. App. 30a,

n. 6. (emphasis added.) If petitioner’s position were to

be accepted, any national program, no matter how

ambitious, could be characterized as a series of

individual decisions, in order to frustrate judicial review

of an agency’s actions.

B. NWF need not establish standing to challenge

the BLM program by producing members

injured by each of the program’s

implementations

As this Court has written so often in the past, the

requirement of standing arises out of Article III's

mandate that federal courts only resolve actual

"cases" or "controversies." U.S. Const. Art. III, §2. The

standing inquiry "focuses on the party seeking to get his

complaint before a federal court and not on the issues

he wishes to have adjudicated." Flast v. Cohen, 392 U.S.

83, 99 (1967). Where standing can not be shown,

Article III principles dictate that a court is without

10

jurisdiction. Valley Forge Christian College v. Americans

United for Separation of Church and State, 454 U.S. 464

(1982).

In order to invoke the powers of the federal judi-

Ciary, certain de minimis standards must be met. Most

important, and at issue in this case, is that parties must

allege they suffer a "distinct and palpable" injury

("injury in fact"), either in the present or in the future,

because of the putatively illegal acts of the defendant.

Valley Forge. The injury must be real, not speculative,

though "an identifiable trifle" will do. United States v.

Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 678, 689 (1973). The injury

must also be caused by the defendant’s putatively illegal

acts or threatened acts. Simon v. Eastern Kentucky

Welfare Rights Organization, 426 U.S. 26 (1976). In

addition, the injury must be capable of remedy by the

court. Warth v. Seldin, 422 U.S. 490 (1975).2/

5. This Court normally finds standing where a

plaintiff also meets its "prudential" requirements,

relating to whether the injury was within the "zone

of interests" meant to be protected by a statute,

Clarke v. Securities Industry Association, 479 U.S. 388

(1986), is more than a "generalized grievance" shared

by many other persons, Warth, supra, and whether

the plaintiff asserts his own interests rather than

those of a third party, Linda RS. v. Richard D., 410

US. 614 (1973).

11

Where, as here, standing is claimed as an "aggrieved"

or "affected" person under §10 of the Administrative

Procedure Act ("APA"), 5 U.S.C. 702, this Court has

required that plaintiffs meet its constitutional and

prudential requirements. Association of Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970).

Harm to aesthetic and environmental interests, such

as is described in the affidavits submitted by plaintiffs

below, was long ago recognized as a legitimate basis

for alleging sufficient injury to meet the APA and

Article III requirements. See, Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59

(1978); SCRAP; Sierra Club v. Morton, 405 U.S. 727

(1972); Association of Data Processing Service

Organizations. Such harm, even if it is shared by many

other people, is evidence of injury in fact so long as

the party demonstrates the necessary personal stake in

the case. Public Citizen v. United States Department of

Justice, 109 S.Ct. 2558 (1989).

Though standing is sometimes more easily shown by

bringing forth several affected parties, this Court has

never required a challenge to a federal agency action

to be brought by a certain minimum number of persons

or entities£/ Nor has this Court required an

6. Cf. Kleppe v. Sierra Club, 427 US. 390

(1976), where the Court expressed no concerns

about the standing of environmental groups to

challenge the failure to prepare a programmatic EIS

12

organization to submit a declaration from every one of

its members to show standing, or to produce multitudes

of persons affected by a program. Warth, supra. In

fact, this Court recently praised the advantages of suits

brought by organizations because their organizational

purposes lend "expertise" and "concrete adverseness" to

disputes. International Union, United Automobile,

Aerospace, and Agricultural Implement Workers of

America, et al., v. Brock, 477 U.S. 274, 289 (1986).

Traditionally, so long as injury is established by one

member of an organization, that organization has shown

standing to bring suit in federal court. See also Hunt v.

Washington State Apple Advertising Commission, 432

U.S. 333 (1977).

Moreover, despite the petitioner’s fervent assertions

to the contrary, it is not at all unreasonable for a party,

be it a Chamber of Commerce, an individual, or a

State, to be able to bring suit against a federal agency

based on the injury suffered from one application of a

federal statute or program. That has long been the

rule. See, e.g., International Union, United Automobile,

Aerospace, and Agricultural Implement Workers cf

America, et al., v. Brock; Kleppe v. New Mexico, 426 US.

529 (1976); Duke Power Co. v. Carolina Environmental

Study Group, Inc.; C.f., Austin, et al. v. Michigan State

for the development of coal reserves in the Northern

Great Plains Region.

13

Chamber of Commerce, No. 88-1569 (March 29, 1990);

Hunt v. Washington State Apple Advertising

Commission 2!

7. Petitioner misapplies the standards for

judging a nonmoving party’s evidence in a motion for

summary judgment. NWF’s evidence of standing,

while perhaps not a model of specificity, was "clearly

averred" and clearly appears in the record. FW/PBS,

Inc. v. City of Dallas, 110 S.Ct. 596 (1990).

Comparing the affidavits to others previously

approved, the two affidavits originally submitted by

NWF in fact strikingly resemble language approved

by this Court in other standing cases. See Duke

Power Co. v. Carolina Environmental Study Group,

Inc., at 73 ("in the vicinity of"); Gladstone, Realtors

v. Village of Bellwood, 441 U.S. 91, 112 (1979)(on

motion for summary judgment, plaintiff's complaints

alleging harm to "society" construed to mean

"neighborhood"); United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), at 678,

(plaintiffs alleged they used the "forests, rivers,

streams, mountains and other natural resources

surrounding the Washington metropolitan area"). The

remaining affidavits are at least, if not more, specific.

In any case, as this Court has pointed out wu the

past, the appropriate remedy to remove doubt would

be to remand for supplementation of the record, not

to dismiss. SCRAP, supra. C.f., Celotex v. Catrett, 477

U.S. 317 (1986)

The argument also confuses an absence of

evidence with a dispute of fact. NWF, as a

nonmoving party, did not have to prove an element

14

The actions being challenged in this case stem from a

single, central policy decision of the BLM to lift

protective land classifications. The fact that this

decision has been implemented nationwide cannot

deprive injured parties of standing to contest its legal

validity.

of its case at the summary judgment stage. Rather,

the petitioner, as the moving party, was required to

"show the absence of any disputed material fact."

Adickes v. Kress, 398 U.S. 144, 158-159 (1970).

Looking at the record to establish "the necessary

factual predicate [instead of] glean[ing] them from

the briefs and arguments," FW/PBS, Inc. v. City of

Dallas, 107 L.Ed.2d 603, 624 (1990), federal

petitioner’s evidence indicates that the area at issue

is much more compact than the petitioner would

have the Court believe. Department of the Interior,

Draft Lander Resource Management Plan/EIS

(1986).

15

Il

BLM IS SEEKING TO AVOID JUDICIAL REVIEW

OF ITS COMPLIANCE WITH FEDERAL STATUTES

BECAUSE ITS PROGRAM IS NATIONAL IN SCOPE

A. BLM is attempting to insulate from review its

compliance with NEPA and FLPMA on the

grounds that its program affects many acres of

land.

This Court should soundly reject the implied

argument of this federal agency that a court should not

enforce NEPA or FLPMA procedures if the federal

agency’s program affects many acres of land. Merely

because a program is national should not be a basis for

allowing a federal agency to evade its NEPA

obligations, since "NEPA contains no exemptions for

projects of national scope." State of California v. Block,

690 F.2d 753, 765 (9th Cir. 1982). In fact, the very

national scope of a project makes the performance of

an EIS more important, rather than less. The rule

proposed by BLM would be a disaster for the states,

gutting NEPA as well as FLPMA protections on

precisely those federal programs with the potential for

the widest possible economic and environmental

consequences.

NEPA compels a federal agency to conduct an EIS

whenever it proposes a “major Federal action{]

16

significantly affecting the quality of the human

environment." 42 U.S.C. §4332. The importance of

NEPA’s action-forcing provision is twofold: it ensures

that the agency will have sufficient information about

every significant environmental impact of a proposed

action, and it guarantees that the agency will inform

the public that it has considered environmental

concerns in its decisionmaking process. Baltimore Gas

& Electric Co. v. Natural Resources Defense Council, 462

U.S. 87, 97 (1983). In addition, the EIS process offers

States and other government bodies "adequate notice of

the expected consequences and the opportunity to plan

and implement corrective measures in a _ timely

manner." 2!

An important component of the NEPA process is

the "tiering" procedure set forth in the regulations

implementing NEPA adopted by the Council on

Environmental Quality (CEQ), see 40 CFR 1502.20;

1508.28 (1989).2/ Tiering is designed to allow federal

agencies to examine the environmental impacts of an

large-scale program or plan (such as national program

or policy statements) in broader impact statements,

8. Robertson v. Methow Valley Citizens

Council, 109 S.Ct. at 1846.

9. The regulations adopted by CEQ

implementing NEPA are binding upon all federal

agencies. 40 C.F.R. §§ 1500.3, 1507.1; see also

Andrus v. Sierra Club, 422 U.S. 347, 358 (1979).

17

while focusing on the impacts of individual actions in

subsequent, site-specific EISs. See id.

Agencies must comply with NEPA’s statutory direc-

tives to the “fullest extent possible." 42’ This Court has

explained that the language chosen by Congress "is

neither accidental nor hyperbolic. Rather, [Congress]

deliberate[ly] command{s] that the duty NEPA imposes

upon the agencies to consider environmental factors

not be shunted aside in the bureaucratic shuffle.” |!’

B. Judicial enforcement of the requirements of

NEPA and FLPMA does not violate separation

of powers principles.

Petitioner argues in its brief that this case raises

serious issues of separation of powers (Petitioner’s brief

at pages 36-37). This argument is a sham, based on a

mischaracterization of the doctrine of separation of

powers. This is not a case in which the courts are

being asked to trespass upon the responsibilities of

another branch of government, but a case in which they

are being asked to carry out a function that is squarely

and clearly assigned to the courts: assuring that federal

10. Flint Ridge Dev. Co. v. Scenic Rivers Ass’n,

426 U.S. 776, 787 (1976).

11. Id.

18

agencies obey the laws Congress has passed and carry

out the duties Congress has assigned to them.

True separation of powers issues arise when the

Court is asked to decide a political question, see Baker

v. Carr 369 U. S. 186 (1962), or to make unauthorized

forays into foreign relations that are committed solely

to the other branches of government, see discussion in

"The War Powers Doctrine and the Political Question

Doctrine,” 1977, 49 U.Colo.L.Rev. 65. But here, the

petitioner has made no such allegation, and cannot do

so, for no such issue or question is involved. Rather,

what the petitioner asserts is that this case is

nonjusticiable because it is large, difficult, complicated,

and involves the administration of large amounts of

land. Indeed, petitioner seems to argue that it is the

size and complexity of the case that implicates the

separation of powers doctrine; the number of acres

involved, the volume of the record the district court

must review, and the “overwhelming” size of the case

that make the case somehow inappropriate for judicial

resolution.

This has never been the rule enunciated by this

Court. It simply cannot be the case that as the country

grows and the responsibilities imposed on the

grovernment grow more complex, and the more people

its actions affect, the courts lose jurisdiction to review

the legality of the government’s most important actions.

In fulfilling their responsibility to resolve allegations

that federal agencies are violating congressional

19

mandates, as well as in other spheres such as antitrust

cases, courts handle huge records and complex and

difficult cases every day. Cases involving highly

technical issues of engineering, chemistry, statistics, and

science are presented regularly to the courts under the

Clean Air Act and Clean Water Act, as well as such

statutes as the Comprehensive Environmental

Response, Cleanup, and Liability Act (commonly called

the "Superfund" law), and the courts are able to handle

them#2/ Similarly, the courts can and have performed

admirably in the very case at bar in ensuring that the

BLM has properly administered lands subject to the

final decision in this case. The petitioner asks this

Court to believe that the courts cannot do what they

have successfully done in this case and others for years,

and as a result to insulate the largest governmental

decisions from review.

It is particularly disingenous for petitioner to invoke

the spectre of separation of powers questions here

because, as the District Court found early on, this case

raises essentially legal issues+2/ BLM’s portrayal of

12. Clean Water Act, 33 U.S.C. $1251 ef seq.;

Clean Air Act, 42 U.S. §7401 et seq.; Comprehensive

Environmental Response, Cleanup, and Liability Act,

42 U.S.C. §9601 ef seq.

13. The lower court said: “The essence of

plaintiffs’ claim is legal: The exercise of agency

discretion and expertise and the development of a

factual record would not be helpful or necessary to

20

NEPA and FLPMA enforcement as _ judicial

management of federal programs is wildly off-base.

Contrary to its claims, respondents are not asking the

federal courts to actually take over BLM’s powers and

responsibilities to manage federal lands. All NWF

seeks in this action is to have BLM conduct a

programmatic EIS, devise land use plans, and notify

Congress and the states of its intentions before

disposing of longstanding federal protections on federal

lands. Opp. Br. Pet. 4. In light of the evidence in the

record that many of these lands have environmental

and recreational value, such a request is hardly

unreasonable.

No management of federal programs is called for,

nor would it be appropriate. As this Court pointed

out in Kleppe v. Sierra Club:

"The only role for a court is to insure that

the agency has taken a “hard look” at

environmental consequences; it cannot "interject

itself within the area of discretion of the executive

as to the choice of the action to be taken." (427

US. 390, 410, n. 21 (1975)(citing Natural

Resources Defense Council v. Morton 458 F.2d 827,

838 (US App DC 1972)).

decide this legal issue." Pet. App. 142a.

21

No separation of powers principles are violated by

the enforcement of NEPA and FLPMA. Congress

specifically provided for public participation throughout

the NEPA and FLPMA processes. NWF is seeking to

enforce these rights. NWF is not seeking any review

of statutes, or challenging any laws on Constitutional

grounds. It is not seeking a radical reinterpretation of

either NEPA or FLPMA. Its challenge of BLM’s

failure to comply with NEPA and FLPMA falls

squarely in line with other state and public challenges

to federal agency action on environmental grounds, as

recognized by the District Court in originally granting

the preliminary injunction, and by the Appeals Court in

affirming the grant.

If this Court interprets the enforcement of NEPA

and FLPMA as judicial management, states and other

interested parties will be seriously hampered in

demanding that federal agencies in the future comply

with these procedures. Other courts will also regard as

judicial management ordering a federal agency to

perform an EIS or to draft a land use plan or to notify

Congress. Without the ability to seek relief from the

courts, EISs and the procedural opportunities they

provide to states and the public would soon be a

distant memory.

Amici States also note that petitioner’s argument

that this case would "overwhelm" the judicial capability

ignores what would happen if its bizarre and overly

restrictive standing doctrine were accepted by this

Court. If indeed an environmental group must allege

22

and prove that an individual member has made specific

and demonstrated use of each and every parcel of land

affected by petitioner’s nationwide program of revoking

land withdrawals, the obvious response of

environmental groups will be to accept the implied

challenge issued by petitioner and file hundreds or even

thousands of suits, each virtually identical in the

statutory issues raised and the relief sought, but alleging

specific harm to specific individuals for each and every

parcel of land affected. Given the large number of

federal programmatic decisions each year affecting

thousands or millions of people, such a scenario would

truly overwhelm the courts, not to mention the federal

agencies and those defending them, with no advantage

in sharpening the issues affecting the validity of the

program as a whole or otherwise fulfilling the purposes

of the standing doctrines.

Standing doctrines should not be used to exclude

from judicial review cases that are not nonjusticiabie,

but merely hard. The courts are charged by the

Constitution with deciding big cases as well as small

ones, difficult and challenging cases as well as simple

ones. Petitioner’s argument on this point should be

rejected by the Court.

23

Ii

PROCEDURAL INJURY UNDER NEPA

OR FLPMA IS NOT THE EQUIVALENT

OF INFORMATIONAL INJURY UNDER

THE FREEDOM OF INFORMATION

ACT ("FOIA")

Petitioner argues that the NWF lacks standing to

challenge the paucity of information and opportunity

for public participation afforded by BLM in the land

withdrawal program, stating that the NWF has not

alleged that it ever sought information that petitioner

refused to disclose. In that argument, petitioner

invokes the standard for disclosure of information in

the Freedom of Information Act, 5 U.S.C. § 552 (see

petitioner’s brief at pages 41-43), and then grafts that

standard onio the FLPMA and NEPA issues that are

presented in this case. Amici States are extremely

disturbed that, some twenty years after the passage of

NEPA, a federal agency could so misconstrue its duty

under that statute. NEPA was not enacted for the

benefit of historians. The standard for what petitioner

calls "informational standing" would deprive not only

respondents, but States and the general public of the

information and the open and public decision-making

process in decisions that affect the environment that

make up the very heart of NEPA.

24

The generation and public dissemination of

information on the environmental effects of major

federal actions are the central purposes of NEPA. The

statute is designed to ensure that federal agencies take

a “hard look" at the environmental consequences of

their actions, informing both themselves as decision-

makers and the public as to those consequences.

Andrus v. Sierra Club, 442 U.S. at 350. Preparation of

an Environmental Impact Statement (EIS) ensures that

agencies "will have available and will carefully consider

detailed information concerning significant

environmental impacts." Robertson v. Methow Valley

Citizens Council, 109 S.Ct. at 1845. Moreover, it also

"guarantees that the relevant information will be made

available to the larger audience that may also play a

role in both the decisiomaking process and the

implementation of that decision." Jd.

Petitioner claims, however, that so long as it is

willing to open up its agency files to the public upon

request, members of the public can claim no injury

from its decisions. But NEPA and FLPMA are not the

natural resources equivalent of the Freedom of

Information Act ("FOIA"). Petitioner’s analogy to

FOIA, which may have been apt in the context of the

open meeting law considered in Public Citizen v. U.S.

Department of Justice, is therefore inapposite. NEPA is

specifically intended to be “action-forcing"; it requires

agencies to affirmatively analyze all potential

environmental consequences of a project, and to

present this information to the public, regardless of

25

whether the public asks for it. This “action-forcing"

provision, and the public notice and review provisions

of FLPMA, are hardly satisfied by turning over boxes

of paper after agency decisions have already been

made.

Nor is the provision of information alone sufficient

to satisfy NEPA. NEPA requires more than just the

disclosure of information; it mandates an open and

public decision-making process of which environmental

values are part and parcel. See, Robertson at 1845 :

"(T]he requirement that agencies prepared detailed

impact statements inevitably bring[s] pressure to bear

on agencies ‘to respond to the needs of environmental

quality’ [citations omitted]." The statute’s implementing

regulations make explicit the obligation of federal

agencies to include the public in their decision making

process. (See 40 C.F.R. § 1506.6 (1989).) As the

Court has observed, publication of an EIS, both in

draft and final form "provides a springboard for public

comment." Robertson at 1845. Indeed, since no

particular substantive result is required under NEPA

(that is, a federal agency need not choose the most

environmentally preferable alternative or action), it is

this process, the generation of information, the full and

complete disclosure of that information to the public,

and the open decision-making process in which

environmental values are required to be considered by

the agency, that is the essence of NEPA. This process

is what NEPA adds to federal decision-making, and to

be deprived of it is to lose all the protection of the

26

Statute that Congress intended to provide.

Commonwealth of Massachusetts, et al. v. Watt, 716 F.2d

946 (1st Cir.1983).

Petitioner attempts to read out entirely this injury in

fact which is caused by agency violations of NEPA:

the loss of the opportunity to participate in the federal

decision-making process, and the absence of the agency

NEPA process in which environmental values are

analyzed in detail. The affidavits of respondent clearly

state such harm: they establish that individual members

of NWF not only use and enjoy lands affected by the

petitioner's program, but that these individuals have

participated in administrative proceedings involving

these lands in the past**/ and are likely to enter fully

into the open decision-making process that NEPA

guarantees. As for NWF itself, Lynn Greenwalt’s

affidavit demonstrates that the central purposes of the

Organization include providing its members the very

kinds of information that NEPA requires, as well as

representing its members in the decision-making

process that NEPA provides. See, Affidavit of Lynn

Greenwalt at paragraph 5.

14. See affidavit of Richard Loren Erman at

paragraphs 4 and 8, affidavit of Peggy Kay Peterson

at paragraphs 4 and 8, and affidavit of Lynn A.

Greenwalt at paragraphs 3 and 4 for specific

allegations of both past participation in federal

decision-making processes and interest. in

participating in the BLM decision at issue here.

27

The interest of amici States in the info.mation and

open procedures NEPA requires is not an academic

one. It is States that most often must deal with the

environmental consequences of federal action, whether

on air quality, water quality, or use of land owned by

the federal government. It is the States that must

handle instream pollution caused by mine waste runoff,

and it is States and their political subdivisions that must

plan for roads to access newly opened and developing

federal lands, for influxes of workers or new industry

that will respond to changing land use, and for all the

other consequences of the decisions that will flow from

the cancellation of land withdrawals. Since States must

accept these burdens, they must have access to full

information on what they may expect to happen, and

they must have access to the process of decision-

making so that they may protect their citizens and their

resources as much as possible. NEPA provides these

rights, and amici States ask the Court to reaffirm

them.42/

15. As the Court recently observed: “With

respect to a development. . .where the adverse

effects. . .are primarily attributable to predicted off-

site development that will be subject to regulation by

other governmental bodies, the EIS serves the

function of offering those bodies adequate notice of

the expected consequences and the opportunity to

plan and implement corrective measures in a timely

manner." Robertson at 1846.

To equate standing under FOIA with NEPA

standing is a gross distortion of NEPA’s purposes and

to the long-standing and settled law under NEPA. The

NEPA claims in respondent’s suit have been ignored by

petitioner. Amici States are concerned that this Court

give to these claims the attention that they deserve,

and that the Court continue its long tradition of

protecting the NEPA rights of the general public and

of the States.

CONCLUSION

For the reasons stated above, the petition should be

denied, and the decision of the Court of Appeals

should be affirmed.

Respectfully submitted,

JOHN K. VAN DE KAMP, Attorney General

of the State of California

ANDREA SHERIDAN ORDIN

Chief Assistant Attorney General

*THEODORA P. BERGER

Assistant Attorney General

CRAIG C. THOMPSON

SUSAN L. DURBIN

CLIFFORD L. RECHTSCHAFFEN

NILDA M. MESA

April 2, 1990

*Counsel of Record

a - -

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA

SS.:

CouUNTY OF Los ANGELES

I am a citizen of the United States and a resident of or

employed in the City of Los Angeles, County of Los

Angeles; | am over the age of 18 years and not a party to

the within action; my business address is 1706 Maple

Avenue, Los Angeles, California 90015.

On April 2, 1990, I served the within Brief of Amici

Curiae in re: “Manuel Lujan, Jr. vs. National Wildlife

Federation” in the United States Supreme Court, October

Term, 1989, No. 89-640, on all parties interested in said

action, by placing three true copies thereof enclosed in a

sealed envelope, with postage thereon fully prepaid, in the

United States Post Office mail box at Los Angeles, Cali-

fornia, addressed as follows:

John G. Roberts, Jr. William Perry Pendley

Acting Solicitor General Mountain States Legal

Richard B. Stewart Foundation

Assistant Attorney General 1660 Lineoin Street

Lawrence 3. Robbins Denver, CO 80264

Assistant to the

Solicitor General

Peter R. Steenland, Jr.

Terrence P. Ross

(yibson, Dunn & Crutcher

1050 Connecticut Avenue, N.W.

re A Washington, D.C. 20036

David A. Kubichek James Burling

Vieki L. Plaut Pacifie Legal Foundation

Attorneys 2700 Gateway aks Drive,

U.S. Department of Justice Suite 200

Washington, D.C. 20530 Sacramento, CA 95833

Kathleen ©. Zimmerman Constanee E. Brooks

Norman L. Dean, Jr. Lindsay, Hart, Neil & Weigier

National Wildlife Federation 222 8.W. Columbia, Suite 1500

1400 16th Street, N.W. Portland, OR 97201

Washington, D.C. 20036

John J. Rademacher

General Counsel

American Farm Bureau

Federation

225 Touhy Avenue

Park Ridge, IL 60068

Bruce J. Ennis

David W. Ogden

David A. Handzo

Jenner & Block

21 Dupont Cirele, N.W.

Washington, D.C. 20036

Jerry L. Haggard

Gerne Apker Kurtz

Apker, Apker, Haggard &

Curtz, P.C.

2111 East Highland Avenue.

Suite 230

Phoenix, AZ 35016

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on April 2, 1990, at Los Angeles, California.

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