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National Helium Corp. v. Morton

ELR Citation: 4 ELR 20041
Nos. Nos. 73-1169, -1449, 486 F.2d 995/6 ERC 1001/(10th Cir., 10/19/1973) Rev'g & remanding intervening district court decision

A district court decision that the final EIS for the Interior Department's termination of helium procurement contracts did not adequately comply with the requirements of NEPA, is reversed. After finding that the Helium Act does not exempt the Secretary of the Interior from the requirements of NEPA, the court rules that the lower court erred in using the Administrative Procedure Act's abuse of discretion provision as the standard for reviewing the EIS. The APA applies only to agency action, and EIS preparation, while it is a prerequisite for such action, is not agency action itself. The proper standard for reviewing the sufficiency of the final EIS is the "rule of reason" or "objective good-faith" test; that is, whether the EIS reasonably discusses the procedural requirements and subject matter involved in the five areas listed in §102(2)(C) of NEPA and whether it constitutes an objective good-faith compliance with the demands of the statute. After noting that the comments received in regard to the draft EIS are to be considered part of the final EIS, the court applies the rule-of-reason test and concludes that the statement is acceptable and adequate under the requirements of NEPA.

A concurrence points out that the court rejects the apparent holdings of the Eighth and Fourth Circuits that an EIS is judicially reviewable on its merits to determine its sufficiency. For an earlier opinion by this court denying dissolution of a preliminary injunction, see 3 ELR 20660.

Counsel for Plaintiff
Robert L. Ackerly
Raymond S. Pushkar
Sellers, Conner & Cuneo
1625 K St., NW
Washington, DC 20006

Emmet A. Blaes
Jochems, Sargent & Blaes
Farmers & Bankers Life Building
200 W. Douglas
Wichita, KS 67202

Counsel for Plaintiff-Intervenor Phillips Petroleum Company
William H. Allen
Eugene D. Gulland
Covington & Burling
888 16th St., NW
Washington, DC 20006

Joseph W. Kennedy
Morris, Lain, Evans, Brock & Kennedy
Suite 430
200 W. Douglas
Wichita, KS 67202

Counsel for Plaintiff-Intervenor Cities Service Helex, Inc.
Daniel R. Hopkins
Legal Department
Cities Service Helex, Inc.
Oklahoma City, OK

Mark H. Adams
Mark H. Adams II
William S. Richardson
Adams, Jones, Robinson & Malone
Suite 301, American Savings Building
201 North Main St.
Wichita, KS 67202

Counsel for Defendants
Raymond D. Battocchi
Morton Hollander
Irwin Goldbloom
Department of Justice
Washington, DC 20530

Robert J. Roth, U.S. Attorney
Federal Building
Topeka, KS 66603