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Environmental Defense Fund v. Higginson

Citation: 11 ELR 20899
No. No. 80-1123, 655 F.2d 1244/15 ERC 2133, 16 ERC 1208/(D.C. Cir., 05/15/1981) Vacated

The appellate court vacates the district court's summary judgment, 10 ELR 20206, holding that the Department of the Interior may delay preparation of a comprehensive environmental impact statement (CEIS) covering all proposed federal water projects in the Colorado River Basin and remands the case to enable plaintiffs to challenge the Department's ultimate decision not to prepare a CEIS. Although the Department initially recognized the necessity of completing a CEIS, it changed its position during the pendency of this appeal, stating that it would meet the requirements of the National Environmental Policy Act (NEPA) through site-specific EISs which would discuss and evaluate any cumulative and synergistic environmental impacts. The court finds nothing in NEPA itself or existing case law which prevents the Department from changing its position with regard to preparation of a CEIS in order to reflect a new departmental policy, a new evaluation of facts, or changed circumstances. However, the court remands the case since under Kleppe v. Sierra Club the Department's ultimate decision to prepare site-specific EISs instead of a CEIS is subject to review under the arbitrary and capricious standard and the absence of a trial record prevents such a review.

The dissent would affirm the district court's decision and, based on Kleppe v. Sierra Club, rule that a CEIS for the entire Colorado River Basin is not required because the relevant projects do not involve a presently existing proposal of regional scope. Even if such a proposal existed, practical considerations of feasibility would lead to the conclusion that site-specific EISs satisfy NEPA's requirements. In addition, an amendment to NEPA which removes the requirement for a CEIS covering the Colorado River Basin obviates the need for additional hearings in this case.

Counsel for Appellants
Paula C. Phillips, George W. Pring, William A. Butler
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Counsel for Federal Appellees
Sanford Sagalkin, William Cohen, Robert L. Klarquist, Joshua I. Schwartz
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2718

Counsel for Appellee State of Arizona
Jerome C. Muys
Holland & Hart
1875 I St. NW, Suite 1200, Washington DC 20006
(202) 466-7340

Counsel for Appellee Utah Power & Light Co.
Gerry Levenberg, R. Keith Guthrie, Jeffrey S. Christie
Van Ness, Feldman & Sutcliffe
1220 19th St. NW, Suite 500, Washington DC 20036
(202) 331-9400

Dennis M. Montgomery, Ass't Attorney General
Department of Law
1525 Sherman St., 3d Floor, Denver CO 80203
(303) 866-3621

Counsel for Intervenor State of Nevada
James V. Lavell, Deputy Attorney General
State Mailroom Complex, Las Vegas NV 89158
(702) 384-2751

Before MacKINNON, MIKVA, and EDWARDS, Circuit Judges.