Environmental Defense Fund, Inc. v. Higginson

No. 78-1135 (D.D.C. January 3, 1980)

The court grants summary judgment to the federal defendants in a case challenging their failure to prepare a comprehensive environmental impact statement (CEIS) concerning a series of water resources projects in the Colorado River Basin. Preliminary procedural decisions in the same case may be found at 9 ELR 20073 and 20329. Although midway through the litigation Congress enacted legislation preventing the court from enjoining construction of the projects for failure to prepare a CEIS, plaintiffs continued to demand that a CEIS be prepared immediately. The court refuses to issue such an order. The decisions whether and when to prepare a CEIS are not to be overturned unless shown to be arbitrary. Here the Department of the Interior has determined that a CEIS prepared at a later date will be just as useful as a CEIS prepared now. In part this is because project-specific impact statements have already been prepared for the water resources projects in question, and they address many of the cumulative environmental impacts of the entire series of projects. In addition, the enactment by Congress of a partial exemption for the projects from NEPA's CEIS requirements makes irrelevant the usual goal of evaluating the environmental consequences of a project in advance of determining whether it should proceed. The court rejects the claim that the case presents a political question and is thus non-justiciable.

Counsel for Plaintiffs
William A. Butler
Environmental Defense Fund, Inc.
1825 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendants
William Cohen, David C. Cannon Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2775

[10 ELR 20207]

Flannery, J.:

Memorandum Opinion

Introduction

Presently before the court are cross motions for summary judgment under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1977). This case involves water resource projects being constructed by the U.S. Department of Interior and the Bureau of Reclamation in the seven-state Colorado River Basin. There appear to be no issues of material fact.

This suit is triangular in nature, involving a dispute between (1) the plaintiffs, including the Environmental Defense Fund (EDF), (2) the defendants, including the Department of Interior (Interior), and (3) the intervenor defendants, including various states and state agencies. Originally the plaintiffs sought not only a declaratory judgment that a comprehensive environmental impact statement (CEIS)¹ is required by NEPA, and an order setting up a timetable for the preparation of the CEIS, but also an injunction of present and future construction of federal water resource projects in the Colorado River Basin pending completion of the CEIS. Injunctive relief is no longer at issue, however, because in October 1978, Congress enacted legislation specifically authorizing the construction to proceed notwithstanding NEPA requirements that might apply to the basin as a whole. This legislation, part of an appropriations bill for Interior, provides:

Notwithstanding any provisions of the National Environmental Policy Act of 1969, . . . construction of any feature of the Upper Colorado River Storage Project [or the Colorado River Basin Salinity Control Projects, the Central Arizona Project, or the Southern Navada Water Project] . . . shall proceed if a final Environmental Impact Statement has been filed on such feature.

H.R. 12932, § 110(a)-(c). Hence the plaintiffs now seek only declaratory relief and a court-ordered schedule for the preparation of a CEIS.

Interior's position is that the questions of whether and when to prepare a CEIS are within its reasonable discretion, and although it has decided that a CEIS is desirable, it need not begin the preparation of the CEIS immediately. The intervenor defendants contend that because no CEIS is required at all, Interior's decision not to act was proper.

The court finds that in view of the deferential character of the standard of administrative review, Interior must prevail in this case.²

I. The Decision to Prepare the CEIS

All sides agree on the significance of Kleppe v. Sierra Club, 96 S. Ct. 2718 [6 ELR 20532] (1976), a NEPA case in which the plaintiffs sought to compel Interior to prepare an EIS for the entire Northern Great Plains region. Interior has prepared EISs for a number of "major Federal actions."³ in that region but none for the region as a whole. The Court stated that an EIS for an entire region is required in either of two situations: (1) when a truly regional proposal is being considered, and (2) when "several proposals for . . . actions that will have cumulative or synergistic environmental impact upon a region" are being considered. Id. at 2730. (Emphasis supplied.) On the facts of that case the Court ruled that neither situation existed, i.e., that there was neither (1) a regional proposal nor (2) a set of lesser proposals that would have a cumulative or synergistic impact upon the region in question. Hence, no regional EIS was required.

Trying to place the case at hand within the parameters of the Kleppe test, the plaintiffs contend both that a plan of genuinely regional character is being put into effect and that the constituent elements of that plan will have a cumulative and synergistic impact. They argue that the accuracy of this contention is reflected in the position of Interior itself and that a CEIS is therefore required as a matter of law.

Interior is in basic agreement with EDF regarding the desirability of a CEIS, although it is Interior's position that whether or not to prepare a CEIS is an issue within its reasonableness discretion, rather than one resolved by law. In contrast, the intervenor defendants contend that the decision to prepare the CEIS was erroneous, because among other reasons, Interior ignored "practical considerations of feasibility." Id. at 2731.

In resolving this dispute it is essential to recall the deference due expert agencies charged with administering technical statutes. The standard of review is the arbitrary-and-capricious standard set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). In a passage particularly relevant to the case at hand, the Kleppe opinion stated:

The determination of the region, if any, with respect to which a comprehensive statement is necessary requires the weighing of a number of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibility. Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies . . . . Absent a showing of arbitrary action, we must assume that the agencies have exercised this discretion appropriately.

Id. at 2731. Here the intervenor defendants have failed to adduce evidence even approaching a showing of arbitrariness or capriciousness, so Interior's decision must be upheld.

2. The Timing of the CEIS

Where Interior and EDF most seriously part ways is on the issue of the timing of the CEIS. EDF argues not only that the CEIS is required as a matter of law but also that preparation of it must begin immediately and that it should be completed within two years. Interior says it will not begin the task until Congress provides an appropriation specifically for this project.

Interior's position reflects two distinct but related determinations, neither of which EDF has shown to be arbitrary or capricious. The first is that a CEIS is simply not needed immediately, i.e., that the purposes to be served by preparation of a CEIS would be as adequately served by a CEIS prepared later as by one prepared now. Presumably, of course, the CEIS could not be postponed forever, but there is no inconsistency in upholding Interior's decision regarding the desirability of a CEIS and also upholding its decision to postpone commencement of the work.

The second determination reflected by Interior's decision to postpone preparation of the CEIS is that whatever comprehensive consideration NEPA mandates for the immediate present is supplied by the cumulative sections of the individual EISs presently being prepared. Secretary Andrus has indicated that every EIS being [10 ELR 20208] prepared on site specific proposals includes consideration of cumulative any synergistic impacts. Hence, the absence of a CEIS does not mean that the sort of comprehensive consideration discussion in Kleppe is altogether lacking. Indeed, Kleppe indicates that this very approach might well be acceptable:

Nor is it necessary that petitioners always complete a comprehensive impact statement on all proposal actions in an appropriate region before approving any of the projects . . . . Thus, an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals.

Id. at 2732 n.26. To be sure, the option described above is not identical to the course Interior has chosen here, and EDF argues that this "one free bite" approach cannot apply in the present case, because considerably more than one project is already underway. The major point, however, is that an EIS for a given project can cover the cumulative impact of previous projects, however numerous. In support of this position Interior cites Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n. (SIPI), 481 F.2d 1079 [3 ELR 20525] (D.C. Cir. 1973), in which Chief Judge Skelly Wright stated:

So long as the . . . NEPA analysis of the overall program is prepared, we think it of little moment whether that analysis is issued as a separate NEPA statement or whether it is included within a NEPA statement on a particular facility. Questions of format such as these properly reside within the discretion of the issuing agency.

Id. at 1092. Although SIPI involved nuclear reactors rather than water resource projects, its point still stands: expert agencies have considerable discretion in this area.

In addition to the deferential character of administrative review and the fact that cumulative and synergistic impacts are being addressed in individual EISs, another consideration cuts in favor of upholding Interior's decision to postpone: the timing of this CEIS is less important than in most instances, because a consequence of § 110 of the above-mentioned appropriations bill is that the water projects presently underway in the Colorado River Basin will proceed to completion before the CEIS could possibly be completed. Thus, the usual goal of evaluating environmental consequences in advance of determining whether a project should proceed at all is irrelevant. Although the plaintiffs cogently reply that a CEIS would still have value for any projects not covered by § 110, this indeterminate value can hardly be deemed controlling.

Finally, in a section of the SIPI opinion entitled "Timing the NEPA Statement," Chief Judge Wright commented:

Determining when to draft an impact statement for a technology development program obviously requires a reconciliation of [various] competing concerns . . . .

Answers to [the multifarious] questions . . . require agency expertise, and therefore the initial and primary responsibility for striking a balance between the competing concerns must rest with the agency itself, not the courts.

481 F.2d at 1094. Although the court in SIPI was dealing with a "technology development program" rather than construction and operation of water resource projects, its mandate of deference to the agencies on the subject of the timing of NEPA statements is manifestly germane here.

EDF points out that Interior has already spent $316,000 on thisCEIS out of general funds in 1977 and 1978, and it quotes Interior Secretary Andrus as conceding in deposition that special appropriations for individual EISs are not the "normal course of business." Moreover, EDF is certainly correct that the full Congress has not expressly prohibited expenditure of funds on this CEIS. But these arguments go to the question of whether or not Interior is financially able to begin preparation of the CEIS — which it is unnecessary to decide here. What this court must decide is whether Interior may, within the bounds of its reasonable discretion, choose to prepare the CEIS later rather than immediately. It is the decision of this court that it may so choose.

3. The Political Question Issue

The intervenor defendants contend that whether or not a CEIS should be prepared is a non-justiciable political question that Congress has already resolved by refusing to fund the project. They rely primarily on letters from individual congressmen and officials and various statements and reports emanating from congressional committee hearings. Essentially these are inconclusive. They do show that certain persons and groups believe — or hope — that without specific congressional apprpriations, a CEIS for the Colorado River Basin cannot be prepared. On the other hand, the Congress as a whole has never addressed the issue, and certainly no law has been passed prohibiting the preparation of a CEIS in the absence of a special appropriation. Although potentially critical, legislative history is supremely manipulable, and little can be attributed to congressional inaction other than a general tendency to inertia.

The intervenor defendants appear to be on stronger ground in arguing that to order preparation of a CEIS in the face of congressional failure to appropriate funds would be to set up the sort of conflict between the legislative and judicial branches that the political question doctrine was designed to avoid. But ruling in favor of Interior's decision regarding the desirability of the CEIS is not the equivalent of ruling that Interior must immediately expend funds in its preparation. This case is a far cry from the classical political question cases, see Baker v. Carr, 369 U.S. 186 (1962), and to rule that a mere failure by Congress to appropriate funds for a CEIS renders the interpretation of NEPA a political question would be to extend the political question doctrine considerably beyond its present borders.

Judgment

Upon consideration of the cross motions for summary judgment and the memoranda submitted in connection therewith, and the court having heard and considered the oral arguments of counsel for all sides, and in accordance with the Memorandum Opinion filed in connection herewith, it is, by the court, this 3d day of January 1980,

ORDERED, ADJUDGED, and DECREED that the defendants' motion for summary judgment be, and the same hereby is, granted; and it is further

ORDERED, ADJUDGED, and DECREED that the plaintiffs' motion for summary judgment be, and the same hereby is, denied; and it is further

ORDERED, ADJUDGED, and DECREED that the intervenor defendants' motions for summary judgment and partial summary judgment be, and the same hereby are, denied; and it is further

ORDERED that the defendants' motion to strike the deposition of Interior Secretary Andrus be, and the same hereby is, denied; and it is further

ORDERED that the intervenor defendants' motion to strike three paragraphs from the affidavit of Dr. Mohamed T. El-Ashry be, and the same hereby is, denied; and it is further

ORDERED that the defendants' motion to reconsider the court's earlier denial of the defendants' motion to dismiss for lack of a case or controversy be, and the same hereby is, denied.

1. A CEIS differs from a regular or "site specific" environmental impact statement (EIS) in that the latter is less demanding in terms of time and money. In this case there is no contention that Interior has failed to prepare a required EIS; the dispute centers on whether or not a CEIS is required, and if so, when it must be prepared.

2. In addition to ruling on the merits of the case, the court is required to rule on three motions involving subordinate issues. The defendants have moved to strike the deposition of Interior Secretary Andrus and also to reconsider the court's earlier denial of the defendants' motion to dismiss for lack of a case or controversy. The intervenor defendants have moved to strike three paragraphs from the affidavit of Dr. Mohamed T. El-Ashry. The court sees no reason to grant these motions.

3. Section 4322(2)(C) of Title 42 of the United States Code requires the preparation of an environmental statement for all "major Federal actions."