Comprehensive Planning Under NEPA: D.C. Circuit Widens Applicability of Program Impact Statement

The vast majority of environmental impact statements prepared under the National Environmental Policy Act (NEPA) during the last five years have concerned the localized environmental effects of particular major federal actions such as highway segments and dams, or of specific federal loans, grants, permits and licenses. That NEPA was intended to have such an impact at the lower levels of federal decision-making, where most decisions regarding environmentally-harmful projects are formulated and made final, is clear from its legislative history.¹

A more recent and equally important trend regarding the "environmental quality" of federal decision-making, however, has been growing recognition among both agencies and courts that in certain circumstances NEPA also requires preparation of "program" environmental impact statements, that is, statements which examine the environmental effects of a broad federal policy or program decision which will entail a number of discreet major federal actions. In an important decision² written by Judge J. Skelley Wright, the D.C. Circuit Court of Appeals has now extended this doctrine by holding that NEPA can require preparation of a program EIS on nominally independent major federal actions within the same geographical area, even where the government claims no federal program exists.

Preparation of program impact statements under NEPA is not a particularly novel concept. The Council on Environmental Quality's 1971 EIS guidelines observed that agencies may need to prepare impact statements "both in the development of a national program and in the review of proposed projects within the national program."³ In 1972 CEQ was more explicit in construing the general requirements regarding program statement preparation:

Individual actions that are related either geographically or as logical parts in a chain of contemplated actions may be more appropriately evaluated in a single program statement. Such a statement also appears appropriate in connection with … the development of a new program that contemplates a number of subsequent actions.⁴

The Council's 1973 Guidelines on EIS preparation go so far as to categorize those instances in which program statements should be prepared:

In many cases, broad program statements will be required in order to assess the environmental 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 alarge-scale program or chain of contemplated projects (e.g., major lengths of highways as opposed to small segments).⁵

Although program statements have been prepared by agencies or the need for their preparation discussed by courts in a number of instances,⁶ until the present case, [5 ELR 10119] the leading decision on when such statements must be prepared was Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission (SIPI).⁷ In SIPI, the D.C. Circuit, in an opinion also written by Judge Wright, ruled that the Atomic Energy Commission was obliged to prepare a program EIS in connection with its Liquid Metal Fast Breeder Reactor (LMFBR) research and development program. The court held that preparation of separate impact statements for each individual test facility and demonstration reactor did not, by itself, constitute full NEPA compliance; the statute also required preparation of a program EIS assessing the cumulative environmental effects of the massive overall LMFBR program.

The rationale behind requiring preparation of a program impact statement for individual actions which are related either geographically, generically, or as logical parts in a chain of contemplated actions was succinctly stated in a 1972 CEQ Memorandum for Agency and General Counsel Liaison on NEPA Matters:

[A program EIS] provides an occasion for a more exhaustive consideration of effects and alternatives than would be practicable in a statement on an individual action. It ensures consideration of cumulative impacts that might be slighted in a case-by-case analysis. And it avoids duplicative reconsideration of basic policy questions.⁸

As an additional justification for requiring a program EIS, the court in SIPI noted that broad federal programs with significant environmental effects can, like individual federal actions, reach such a stage of investment or commitment to implementation as to restrict later alternatives, and should therefore be subjected to NEPA's EIS procedures prior to that point.

Common to SIPI and all the other instances in which program impact statements have been either judicially mandated, prepared, or reviewed, was the admitted existence of a single federal program encompassing a number of environmentally-significant individual major federal actions. While the ripeness of these programs for impact statement preparation was disputed in some cases, the characterization of a cluster of geographically or generically related agency actions as a "program" was not contested. In the recent D.C. Circuit case of Sierra Club v. Morton,⁹ however, the government denied that there was any such thing as a federal program for developing the coal resources of the Northern Great Plains, an area encompassing eastern Montana, northeastern Wyoming, and the western Dakotas, arguing that preparation of a program EIS under NEPA is required only when the government itself has designated the activities at issue a "program."

The district court agreed with the defendants' (the Interior Department, Agriculture Department, and Army) view of the situation, and found that there was no existing or proposed regional program or plan of federal action for coal development in that area.¹⁰ The existence of multiple applications for federal action regarding coal leases in a multi-state area did not controvert this conclusion because the applications were "unrelated" to one another. Nor did the existence of an ongoing federal-state inter-agency study entitled the Northern Great Plains Resource Program (NGPRP) change the court's view, since the NGPRP was found to be a study project rather than a program for development.

The district court's ruling was based almost entirely on its interpretation of the factual situation underlying the dispute, which was as follows. In 1973, the Interior Department had announced a short-term policy which allowed issuance of additional coal leases in the Northern Great Plains only under certain specified and restrictive conditions, and totally suspended issuance of coal prospecting permits pending completion of the NGPRP study. Interior had also begun preparation of a program statement on its national coal leasing policy which was to include the Northern Great Plains. Both the Department of Agriculture, which has jurisdiction over the issuance of permits for rights-of-way over lands within the national forests, and the Army Corps of Engineers, which has jurisdiction over construction within or across navigable waters, had stated that they would not consider applications for any permits or rights-of-way prior to June 30, 1974, the approximate expected completion date of the NGPRP.

On the basis of these facts, the district court concluded that the actions thus far taken by the Interior Department were not part of a plan or program to develop or encourage development of coal resources in the area but were instead federal attempts to control such development by individual companies in a manner consistent with the policies and procedures of NEPA. According to the court, there was no evidence either that federal action had been taken or was threatened to be taken on individual projects for the development of coal resources in what plaintiffs dubbed the "Northern Great Plains region," or that individual development projects by private industry were being planned or constructed in the area as part of any integrated plan or program. In fact, the court specifically found that the Northern Great Plains, as defined by the plaintiffs, "is not an entity, region, or area which has been defined by the Federal Government by statute or executive action [5 ELR 10120] for purposes of any Federal program, project, or action."

By the time the case came before the court of appeals, however, the fact situation had changed significantly. The appeals court noted that the freeze on consideration of permit applications had expired on June 30, 1974, and both agenices had begun accepting applications for processing. Thus, at the time the circuit court's opinion was written, four applications were pending before the Agriculture Department for coal-related right-of-way over national forest lands in the Northern Great Plains; the Corps was considering one application for a right-of-way over navigable rivers and two applications for the building of structures in navigable waters within the region. Moreover, the Corps' issuance in September and October 1974 of two permits for structures in navigable waters in the area had signaled its willingness to process applications.

Judge Wright also noted that Interior's short-term leasing policy contained some large loopholes through which federal action could proceed. Since the policy was enunciated, four mining plans for existing leases in the region have been approved, with approval pending for 12 more such plans, four in the region and eight in the larger four-state area surrounding it. During the same time period, four coal leases have been issued throughout the nation, and 42 lease applications remain under consideration in the four-state area. In addition, Interior has granted two coal-related rights-of-way in the four-state area including the Northern Great Plains since June 30, 1974, and has under advisement 14 applications for such rights-of-way across the region itself.

Relying on SIPI and Conservation Society of Southern Vermont v. Secretary of Transportation,¹¹ where the Second Circuit held that improvement of a 20-mile segment of U.S. Route 7 could not proceed until a comprehensive EIS was prepared for the entire 280-mile length of the highway, the majority, consisting of Judge Wright and Chief Judge Bazelon, reversed the district court and ruled that these facts evidence a contemplated federal program for the regional development of the Northern Great Plains for which a program impact statement will have to be prepared. Specifically, the court found that the federal defendants have treated and are treating the individual agency actions regarding leases and applications for permits and rights-of-way within the region in such a way that they comprise, cumulatively, a major federal action.

Judge Wright found overwhelming evidence that the federal government had for years been trying to develop a regional program for controlling in some form the regional development of the coal resources of the Northern Great Plains. According to his analysis, the NGPRP is only the latest of several government attempts to formulate such a program, as is demonstrated by the stated goals of the NGPRP, the suspension of federal activity in the region pending its completion, the comments of responsible officials, and the findings of the district court:

[W]hen the federal government, through exercise of its power to approve leases, mining plans, rights of way, and water option contracts, attempts to "control development" of a definite region, it is engaged in a regional program constituting major federal action within the meaning of NEPA, whether it labels its attempts a "plan," a "program," or nothing at all.

A dissent by Judge MacKinnon vigorously disputed the majority's conclusion on this point and examined a number of cases¹² in which courts have determined that a regional or program impact statement was not necessary before individual projects within the region could be approved. Judge MacKinnon concluded that the potential individual actions involved in development of the Northern Great Plains lack even the slight interrelationship which was present in those instances. However, the majority distinguished the cases cited by Judge MacKinnon on the basis that they all involved the propriety of an injunction against an individual project pending completion of a regional EIS or other study, rather than, as in this case, a direct challenge to the need for a regional impact statement.

Having decided that the federal government is contemplating a regional program of major federal action within the Northern Great Plains, Judge Wright then considered whether the action was repe for preparation of a program EIS. Noting that the EIS must be written late enough in the development process to contain meaningful information, yet early enough so that whatever information is contained can practically be used in the decision-making process, the court enunciated four factors to be balanced in determining the federal development program's ripeness.

How likely is the program to come to fruition, and how soon will that occur? To what extent is meaningful information presently available on the effects of implementation of the program, and of alternatives and their effects? To what extent are irretrievable commitments being made and options precluded as refinement of the proposal progresses? How severe will be the environmental effects if the program is implemented?

Consideration of the second and fourth factors inclined the court toward a finding of ripeness, but analysis of the other two factors was inconclusive. The case was therefore remanded with the direction that the federal defendants decide within 30 days of the issuance of the NGPRP Interim Report or the date of the circuit court's decision, whichever is later, whether or not to [5 ELR 10121] prepare a program impact statement for the region, and report their decision and the reasons for it to the district court. Judge Wright noted that whether a regional EIS is necessary will depend on whether the government, as is presently indicated by its actions and plans, ultimately chooses some form of controlling role in Northern Great Plains coal development. Even if the government chooses to play no role, however, the opinion pointed out that a negative assessment would have to accompany a decision not to prepare a program or regional impact statement. A temporary injunction¹³ issued January 3, 1975 against further federal action regarding certain mining plans and rights-of-way in the Eastern Powder River Basin portion of the region was continued.

Despite its broadening of the requirements for preparation of program impact statements, the most interesting part of Judge Wright's opinion is his suggestion that NEPA in effect imposes a positive duty on federal agencies to undertake comprehensive regional planning when they refuse to do so on their own volition. Characterizing plaintiffs' position as a request that preparation of a comprehensive EIS be required if "a comprehensive program should be underway" (emphasis the court's), Judge Wright read the CEQ Guidelines on EIS preparation,¹⁴ in conjunction with dicta in certain cases,¹⁵ as suggesting that a duty to plan comprehensively can be imposed on the government apart from the duty to file an impact statement for existing comprehensive plans or programs. The opinion also pointed out that § 101(a) of NEPA declares it to be federal policy "to use all practical means … to improve and coordinate Federal plans, functions, programs and resources in order to protect the environment." (emphasis supplied). Citing the Calvert Cliffs decision for the proposition that NEPA's substantive provisions may be enforced in court, Judge Wright then suggested that "[a]gency violation of this substantive duty by a failure to improve its plans or coordinate its actions might justify a judicial directive to coordinate various major federal actions into one comprehensive major federal action, followed by a directive ordering issuance of a comprehensive EIS for that newly-comprised action."

The majority's suggestion that NEPA might impose a responsibility for comprehensive planning on federal agencies may in fact reflect the essence of NEPA's viability as a substantive statute. There is presently a split in judicial authority as to whether NEPA is essentially a procedural statute, or mandates substantive changes in agency decision making as well¹⁶ Heretofore this question has arisen almost exclusively in connection with particular major federal actions. Those who claim that NEPA is a substantive statute have argued that an agency cannot approve or take action which a NEPA impact statement shows will have significant adverse environmental impacts unless there are compensating benefits which more than counterbalance these losses. The assumption underlying this argument is that NEPA was intended to make substantive change in agency decision-making by requiring agencies to modify or abandon environmentally unacceptable proposals.

The comprehensive planning duty suggested by Judge Wright would approach this problem from a different direction, however, by mandating coordinated review of possible cumulative environmental impacts of related federal actions at the highest levels and earliest stages of federal policy-making. Such an approach would arguably ensure that geographic or generic combinations of projects with unreasonably destructive cumulative environmental consequences would be detected early in the decision-making process, at a time when the agency had made no commitment to any particular projects, and when modification or cancellation of certain projects to mitigate these cumulative effects is still relatively easy. Moreover, early administrative environmental evaluation is more efficient than later judicial intervention.

The suggestion also mirrors, to some extent, EPA's reported consideration of legislative recommendations for the expansion of current areawide waste treatment management planning under § 208 of the Federal Water Pollution Control Act Amendments of 1972 to include air quality maintenance, solid waste management, and transportation control plans under § 110 of the Clean Air Act and other statutory provisions in order to foster comprehensive environmental planning on the local level.¹⁷ Judge Wright may, however, have suggested such a duty because its enforcement would provide environmental plaintiffs with a means of subjecting federal decision-making at the policy level to review under NEPA without the factual hurdle of having to show that a program exists in the face of agency denials.

The court emphasized the practical difficulties which could arise in the broad application of this principle: an infinite number of geographic or generic interrelationships could be found among the various federal projects throughout the country, and different litigants might seek to incorporate the same project into a myriad of different programs for planning purposes. In addition, the use of NEPA to impose a comprehensive planning duty on an unwilling agency as a means of forcing preparation of a comprehensive impact statement might intrude unduly on agency discretion and involve the [5 ELR 10122] courts to an unacceptable extent in the day-to-day business of running the government. Nonetheless, the court noted the persuasiveness of the legal arguments behind plaintiffs' position and pointed out that these dangers would be minimized since an agency would be held to have violated the substantive provisions of NEPA only if its failure to plan comprehensively was arbitrary or capricious. After going through this analysis, however, the court declined to decide the comprehensive planning issue on the ground that such a decision was not necessary to resolution of the case.

The dissent reiterated the practical difficulties connected with such a comprehensive planning requirement, and argued that

[w]hile the majority's attempt to force the federal government to engage in comprehensive long-range planning might in some sense be socially "good," the question before this court is not what the agencies "ought to" do but rather what NEPA requires that they do.

According to Judge MacKinnon, imposition of such a comprehensive planning obligation would paralyze the federal government, and Congress, in passing NEPA, thus clearly did not have such a requirement in mind.

The D.C. Circuit's ruling in Sierra Club, in conjunction with an almost contemporaneous Ninth Circuit ruling, also provides an extensive example of the "tiering" of impact statements under NEPA. Tiering is a refinement of the multiple impact statement concept; it provides for the preparation of more than one EIS during the development and implementation of a program, timed in stages, or tiers. Each tier is designed to aid the decision-maker in answering different sorts of questions relating to a proposed series of major federal actions,but each relies and builds upon the findings in the impact statements of the others.¹⁸ Broad policy alternatives are considered at an early stage, while issues relating to the development of individual projects await later analysis.

In Cady v. Morton,¹⁹ a case involving the leasing of Indian-held mineral rights in over 30,000 acres within the Northern Great Plains region to a strip mining company, the Ninth Circuit held that a separate EIS must accompany the Bureau of Indian Affairs' approval of the two leases involved, and in addition, the approval of each individual mining plan within the leased area. Thus in view of Sierra Club and the program EIS which has already been prepared for the nationwide federal coal leasing program, there will be at least three and possibly four tiers of EIS preparation for development of federal coal in the Northern Great Plains. The EIS on the nationwide coal leasing program deals, albeit inadequately, with the general questions of whether and how renewed leasing of federal coal resources should be undertaken, and the possible alternatives to renewed leasing for meeting future national energy needs.²⁰ The Northern Great Plains regional EIS, if the government opts for an active role in controlling coal development and a regional EIS is in fact prepared, will presumably focus on the broad and cumulative impacts of leasing, mining, and the granting of coal-related rights-of-way and water rights applications throughout the region. The EIS accompanying each lease approval would then deal with the question of whether mining should take place at all on that particular location, and the EIS for each mining plan would consider the specific methods by which mining should be carried out at that spot.

The Sierra Club decision is thus important for a number of reasons. First, in the context of direct environmental effects, it holds out the promise of better environmental planning regarding the incipient development of a large portion of the nation's western coal reserves.Second, the ruling significantly broadens the type of federal action for which preparation of a program EIS may be required under NEPA; such actions now will encompass multiple diffuse agency decisions and actions which are not nominally or formally connected, but which are related either geographically or generally, and have a cumulative environmental impact. Federal agencies are thus now prevented from avoiding preparation of a program EIS merely by refusing to designate a program "a program." Third, it represents, in conjunction with Cady v. Morton, an application of the concept of "tiered" impact statement preparation, with three and possibly four distinct levels or stages of EIS preparation and review now imposed on federal coal development in the Northern Great Plains. Fourth, the suggestion that NEPA may impose a comprehensive planning duty on federal agencies may hold the key to NEPA's viability as a substantive statute. And fifth, the decision's intimation that NEPA may provide a means by which to impose a responsibility for comprehensive planning on federal agencies parallels EPA's reported consideration of legislative recommendations to foster comprehensive planning on the local level by expanding the scope of areawide planning under § 208 of the FWPCA, § 110 of the Clean Air Act, and other statutory provisions.

Judge Wright's opinion confirms his reputation as one of the most thoughtful judicial analysts of NEPA, and uncovers even further dimensions to this already much-explored statute. The full measure and viability of these additional NEPA avenues for environmental protection must, however, be left for future litigation to determine.

1. 115 Cong. Rec. S. 12117 (daily ed. Oct. 8, 1969).

2. Sierra Club v. Morton, 5 ELR 20463 (D.C. Cir. June 16, 1975).

3. CEQ Guidelines for Statement on Proposed Federal Actions Affecting the Environment § 10(a) (1971), 2 ELR 46049, 46051.

4. CEQ Memorandum for Agency and General Counsel Liaison on NEPA Matters (May 16, 1972), 2 ELR 46162, 46164.

5. CEQ Guidelines on Preparation of Environmental Impact Statements, 40 C.F.R. § 1500.6(d)(1), ELR 46003, 46005.

6. See e.g., NRDC v. TVA, 3 ELR 20455 (E.D. Tenn. 1973), 3 ELR 20724 (E.D. Tenn. 1973), aff'd, 4 ELR 20737 (6th Cir. 1974); NRDC v. Morton, 5 ELR 20327 (D.D.C. 1974); Minnesota PIRG v. Butz, 3 ELR 20457 (D. Minn. 1973), aff'd, 4 ELR 20700 (8th Cir. 1974); Stop H-3 Assn. v. Volpe, 2 ELR 20648 (D. Ha. 1972); Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 5 ELR 20086 (D.D.C. 1974); Sierra Club v. Morton, 5 ELR 20249 (5th Cir. Mar. 27, 1975); Conservation Society of Southern Vermont v. Secretary of Transportation, 3 ELR 20709 (D. Vt. 1973), aff'd, 5 ELR 20068 (2d Cir. 1974).

7. 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973).

8. Supra, n. 4 at 46164.

9. 5 ELR 20462 (D.C. Cir. June 16, 1975).

10. Sierra Club v. Morton, 4 ELR 20247 (D.D.C. 1974).

11. 5 ELR 20068 (2d Cir. 1974).

12. Trout Unlimited v. Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974); Sierra Club v. Stamm, 507 F.2d 788, 5 ELR 20209 (10th Cir. 1974); Sierra Club v. Callaway, 499 F.2d 982, 4 ELR 20731 (5th Cir. 1974); EDF v. Armstrong, 356 F. Supp. 131, 3 ELR 20294 (N.D. Cal.), aff'd, 487 F.2d 814, 4 ELR 20001 (9th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 3 ELR 20045 (9th Cir. 1973); and Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 3 ELR 20667 (D. Md. 1973), aff'd, 4 ELR 20278 (4th Cir. 1974).

13. Sierra Club v. Morton, 5 ELR 20155 (D.C. Cir. Jan. 3, 1975).

14. Supra, n.5.

15. The example the court uses is NRDC v. Morton, 458 F.2d at 836, 2 ELR at 20033 (D.C. Cir. 1972).

16. Compare, e.g., EDF v. Corps of Engineers (Gillham Dam), 470 F.2d 289, 297, 298, 2 ELR 20740, 20743, 20744 (8th Cir. 1972) with Lathan v. Brinegar, 4 ELR 20802, 20808 (9th Cir. 1974).

17. See Environmental Protection Agency — Recent Developments, 5 ELR 10109, 10110 (July 1975).

18. For a more detailed discussion of the concept of tiering impact statements, see F. Anderson, NEPA in the Courts 290-292 (1973), and F. Anderson, The National Environmental Policy Act, in Federal Environmental Law 362 (1974).

19. 5 ELR 20445 (9th Cir. June 19, 1975).

20. For a detailed analysis of this EIS, see the Institute of Ecology Environmental Impact Assessment Project's Scientific and Policy Review of the Draft Environmental Impact Statement for the Proposed Federal Coal Leasing Program of the Bureau of Land Management, Department of Interior (1974).