Sierra Club v. Andrus
Citation: 8 ELR 20490
No. No. 75-1871, 581 F.2d 895/11 ERC 1625/(D.C. Cir., 05/15/1978) Rev'd
The United States Court of Appeals for the D.C. Circuit reverses a district court's ruling, 5 ELR 20383, that the National Environmental Policy Act (NEPA) requires preparation of an environmental impact statement (EIS) on an annual budget request for operation of the National Wildlife Refuge System. However, the court of appeals affirms the lower court's order that the Office of Management and Budget (OMB) develop formal procedures to fulfill its NEPA obligations. Preliminarily, the court points out that plaintiffs have not supported their allegations of use of the refuge system with affidavits and notes that on remand defendants may thus raise the issue of plaintiffs' standing to bring this action. Plaintiffs' contention that NEPA requires preparation of an impact statement on every budget request for any program or agency whose activities may have significant environmental effects would, if accepted, ultimately overburden and trivialize the statute. Applying the rule of reason in interpreting NEPA's requirements, the court determines that a "routine" budget request which does not envision changes in the status quo is neither a "proposal for legislation" nor a "major federal action" within the meaning of § 102(2)(C) of the Act. NEPA's EIS requirement is, on the other hand, fully applicable to a request for budget approval and appropriations that "ushers in a considered programmatic choice following a programmatic review." Noting that the Fish and Wildlife Service has prepared a programmatic EIS on its long-term plan for operation of the National Wildlife Refuge System, the court holds that the agency has no obligation to file a separate impact statement on an annual budget request for operation and maintenance of the refuge system at a relatively constant level of funding. The court of appeals agrees with the district court's judgment that OMB is not exempted from NEPA's requirements and thus must adopt formal procedures for implementing the statutory mandate. The court emphasizes that this requirement will not place an onerous burden on OMB because budgetary impact statements will be necessary in relatively few instances, and proposals for major program reviews can be disclosed in general outline so as not to undercut the need for confidentiality in the budget process.
A dissent argues that the legislative history and uniform precedents indicate budget requests are not to be considered proposals for legislation under any circumstances, and that the entire budget process is thus outside the scope of NEPA's EIS requirement.
Counsel for Plaintiffs-Appellees
Bruce J. Terris, Jona F. Hostetler
1526 18th St. NW, Washington DC 20036
Counsel for Defendants-Appellants
Raymond N. Zagone, L. Mark Wine, Dirk D. Snel, Edmund B. Clark
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Steven Gottlieb, Ass't General Counsel
Office of Management and Budget, Washington DC 20503
Before: BAZELON, LEVENTHAL and MacKINNON, Circuit Judges.
Opinion filed by Circuit Judge MacKINNON, concurring in part and dissenting in part.