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2 ELR 20287 | Environmental Law Reporter | copyright © 1972 | All rights reserved The Jicarilla Apache Tribe of Indians v. MortonCiv. 71-566; 71-565-PHX (D. Ariz. March 14, 1972)The Secretary of Interior has satisfied the requirements of the National Environmental Policy Act of 1969 (NEPA) with respect to his approval of various components of five major coal-fired electric generating stations — eventually consisting of 13 units capable of producing 7,172 megawatts located in the four corners area of the southwestern United States. Therefore, defendant-intervenors' motion for summary judgment in a suit brought to declare the Secretary's approvals invalid is granted. Paragraph 11 of the Council on Environmental Quality's Guidelines for the Implementation of NEPA does not require environmental impact statements to be prepared for programs or projects in which major federal action is involved when such programs or projects were initiated prior to January 1, 1970 and it is not practicable to reassess the basic course of action. Under these circumstances the lead agency is required to shape further incremental major actions to minimize adverse environmental consequences, including those not fully considered at the outset of the project or program. Although environmental impact statements have been filed for the Navajo and Huntington Canyon Projects, and a statement is being prepared for the San Juan Project, such compliance with NEPA is not mandatory because these projects were initiated prior to the effective date of the Act and their reassessment is not practicable. Counsel for Plaintiffs Robert M. Kennan, Jr. Counsel for Federal Defendants Frey, J. This action came on for hearing before the Court, William C. Frey, District Judge, presiding. The issues have been duly heard and based upon the pleadings, oral arguments, briefs, affidavits and other materials filed by the parties, and in accordance with the Findings of Fact and Conclusions of Law made and entered herein, IT IS ORDERED AND ADJUDGED, as follows: 1. That the plaintiffs' motion for summary judgment is denied. 2. That the defendants' and intervenors' motions for summary judgment are granted. 3. That the plaintiffs take nothing and that the action be dismissed on the merits. DATED at Phoenix, Arizona, this 14th day of March, 1972. FINDINGS OF FACT AND CONCLUSIONS OF LAW BACKGROUND AND SCOPE OF LITIGATION These consolidated cases, while initially broad in scope, now have boiled down to a narrow issue, to-wit: Whether the Federal defendants by approval actions relating to the Navajo Coal-Fired Electric Generating Project, the Huntington Canyon Coal-Fired Electric Generating Station and associated transmission and other facilities, the San Juan Coal-Fired Electric Plant and associated transmission and other facilities, the Four Corners Coal-Fired Electric Generating Plant, the Mohave Coal-Fired Electric Generating Plant, and the proposed Kaiparowits Coal-Fired Electric Generating Plant taken since January 1, 1970, or by the filing of draft or final environmental statements relating to these plants and related facilities, have violated the provisions of the National Environmental Policy Act, 83 Stat. 852, 42 U.S.C., Sec. 4321, et seq., (referred to hereafter as NEPA). The case background is briefly summarized: Plaintiffs filed this action on June 2, 1971 in the United States District Court for the District of Columbia and now seek pursuant to plaintiffs' First Amended Complaint,1 a declaratory judgment as to the procedures that must be followed under NEPA as a condition precedent to the exercise of the decision-making responsibility entrusted to the Federal defendants. They seek a declaration from this Court that no further approvals may be issued until those procedures are complied with and further, a finding that all permits issued from January 1, 1970 to date are invalid and must be reassessed after compliance with the NEPA procedures. On August 19, 1971, the United States District Court for the District of Columbia authorized the participation of intervenors as defendants and by granting the motion of all defendants, transferred the proceedings to this Court. All parties have now moved for summary judgment and have expressed the need for the expeditious resolution of this controversy. The Court is in full agreement. On February 9, 1972, the Court heard six hours of argument on the cross-motions and finds that there are no genuine issues as to any material fact and that plaintiffs' motion for summary judgment should be denied and defendants' and intervenors' cross-motions granted. From a review of the pleadings, memoranda, affidavits, exhibits and all matters filed herein which it appears to the Court the parties stipulated and intended that the Court take into consideration in determining this case, the Court adopts as its Findings of Fact those proposed or submitted by the intervenors; therefore, IT IS ORDERED that the Findings of Fact proposed by the intervenors herein and heretofore submitted to the Court are hereby adopted as the Findings of Fact of this Court the same as if fully set forth herein. 1. The Four Corners Power Plant is located on the Navajo Indian Reservation near Farmington, New Mexico. The Plant consists of five coal-fired steam electric generating units. Units No. 1 and No. 2 were placed in commercial operation in 1963. Unit No. 3 was placed in commercial operation in 1964. These three units are owned and operated by Arizona Public Service Company. Units No. 4 and No. 5 are owned as tenants in common by Arizona Public Service Company (15%), El Paso Electric Company (7%), Public Service Company of New Mexico (13%), Salt River Project Agricultural Improvement and Power District (10%), Southern California Edison Company (48%), and Tucson Gas and Electric Company (7%). Arizona Public Service Company operates Units No. 4 and No. 5 as Operating Agent for the owners of these units. Unit No. 4 was placed in commercial operation in July, 1969. Unit No. 5 was placed in commercial operation in July, 1970. 2. The Four Corners Plant was originally established in 1960, when Arizona Public Service Company obtained a site lease for a power plant from the Navajo Tribe. The instruments relating to this lease were: (a) Indenture of Lease between the Navajo Tribe of Indians and Arizona Public Service Company, signed by the parties on December 1, 1960, and approved by the Secretary of the Interior on December 14, 1960. (b) Wholesale Power Supply Agreement between Arizona Public Service Company and the Navajo Tribe of Indians, signed December 1, 1960 and approved by the Secretary of the Interior on December 14, 1960. 3. On July 6, 1966, by provisions of the "Arizona § 323 Grant" from the Secretary of the Interior and by provisions of the Supplemental and Additional Indenture of Lease, rights-of-way and easements were granted to Arizona Public Service Company for use in connection with Units 1, 2 and 3. 4. Units No. 4 and No. 5 were added to the Four Corners Generating Station pursuant to the following instruments: (a) § 323 Grant", granting multiparty rights-of-way and easements, for the enlarged station, by the Secretary of the Interior was signed on July 6, 1966. (b) Supplemental and Additional Indenture of Lease (which also supplemented and modified the 1960 Lease to Arizona Public Service Company) between the Navajo Tribe of Indians and all owners, signed by the parties May 27, 1966 and approved by the Secretary of the Interior, July 6, 1966. 5. Coal for each of the five units is supplied by Utah Construction and Mining Company from lands under lease from the Navajo Tribe since 1957. Water for use of Units 1-5 (about 51,600 acre-feet annually) is obtained from the San Juan River under diversion rights granted by the New Mexico State Engineer in 1955. A water service contract approved by Congress was executed by the Secretary of the Interior in April 1968 with Utah Mining and Construction Company for 44,000 acre-feet of water from the Navajo Reservoir, a Bureau of Reclamation facility, for possible future development of coal resources. 6. Based on environmental provisions included in the 1966 lease, the lessees are required to install the best pollution control equipment then available in all five units and to periodically update such equipment. The plants are required to operate in compliance with criteria specified in the lease. The technology of pollution control equipment is subject to periodic review by the Secretary of the Interior to determine if updating is necessary. Arbitration is provided if differences of opinion should arise concerning the implementation of these provisions. 7. On October 22, 1970, federal approval was given for the design of scrubbers to be installed on Units 1, 2 and 3. The only pending request for approval now before the Department of the Interior [2 ELR 20289] for the Four Corners Plant concerns the design of air pollution control equipment to be added to Units 4 and 5 which will materially reduce particulate emissions. 8. With respect to Units 6, 7 and 8 at the Four Corners site, no federal action has been taken since January 1, 1970, and no federal actions are pending. At this time, these units are a potential future site for one or more fossil-fueled generating units similar to a large number of other potential sites scattered throughout the Southwest. 9. As of January 1, 1970, it was not practicable to reassess the basic course of action with respect to the Four Corners Project. 10. Federal action on the Four Corners Project since January 1, 1970, has been shaped to minimize adverse environmental consequences. 11. An environmental impact statement has not been prepared with respect to federal action on the Four Corners Project. 12. The Mohave Project consists of two 755,000 kw coal-fired steam electric generating units located in Clark County, Nevada. The related Eldorado Transmission System includes 57 miles of jointly owned 500 kv transmission line connecting the Mohave Project with the jointly owned Eldorado substation near Boulder, Nevada. The Eldorado Transmission System consists of three major components: (a) The Mohave-Eldorado 500 kv Transmission Line; (b) The No. 1 and No. 2 Eldorado-Mead 200 kv Transmission Lines; (c) The Eldorado Substation Site. 13. The participants in this project are: Southern California Edison Company ("Edison") (56%), Salt River Project Agricultural Improvement and Power District (10%), Nevada Power Company (14%), and the Department of Water and Power, City of Los Angeles (20%). The major components of the Eldorado Transmission System are owned by some or all of the participants in various different percentages. 14. The plant is constructed on non-Federal, non-Indian lands. Coal is supplied to the plant from the Black Mesa in Arizona by a 275-mile underground slurry line. The coal is mined from Indian lands under leases dated February 1, 1964, and June, 1966, between Sentry Royalty Company and the Navajo Tribe for approximately 24,858 acres and 40,000 acres, respectively. A June, 1966 lease between Sentry Royalty Company and the Hopi Tribe covers the same 40,000 acres as are covered in the latter lease with the Navajo Tribe. Sentry Royalty Company's rights have been assigned to Peabody Coal Company, with the approval of the Navajo and Hopi Tribes. 15. Preliminary studies relating to the selection of the site for the Mohave Project were under way as early as 1962 in which the economics, water availability, fuel availability, air and water quality considerations and land availability pertaining to various sites were explored. A decision was made in 1965 to construct the Mohave Project at its present site on a joint ownership basis. 16. On October 26, 1966, the United States conveyed fee title to certain lands, including the plant site, to the Colorado River Commission of Nevada (the "Commission") which, on the same date, conveyed title to Edison of the Mohave Plant Site. 17. On October 26, 1966, the United States entered into a Contract for Delivery of Water with the Commission to deliver to the Commission not more than 30,000 acre feet of the State of Nevada's annual allocation of 300,000 acre feet allotted under the Boulder Canyon Project Act by contract dated March 30, 1942, as supplemented January 3, 1944, between the United States, the States of Nevada, and its Commission. In turn, on the same date, the Commission entered into a Water User Contract with Edison pursuant to which the Commission agreed to deliver to Edison not to exceed 30,000 acre feet of water for use in connection with the Mohave Project. The Water User Contract obligates Edison to perform the obligations of the Commission under its contract with the United States. The rate of diversion of water delivered was limited to not in excess of 50 cubic feet per second. The contract contains further provisions requiring Edison to prevent any significant and measurable pollution of the waters of the Colorado River, intermittent tributary streams of underground waters and or any measurable return to waste water thereto by reason of development, operation or activities on the plant site unless otherwise agreed by the Commission and the Secretary of the Interior. All designs and plans for waste water, waste material and sewage disposal facilities were required to be submitted to the Secretary for his written approval in advance of construction or installation and in advance of any modification or removal thereof. The agreement further provides that nothing in the contract would be construed to relieve Edison from complying with all valid applicable water pollution control regulations under Federal, State or County jurisdiction then or thereafter in force. 18. The Water User Contract required the prior written approval by the Secretary of the Interior of construction, installation, removal or major modification of air pollution control equipment employing the most effective, commercially proven, electrostatic concept available under the technology known at the time of design of said facilities, and Edison was required to operate such equipment so as to remove not less than 97% of the particulate matter in the stack emissions in each month and not less than 96% thereof in any 24-hour period, subject to deviations arising from uncontrollable forces. The contract also specified the height of the plant stack to be not less than 500 feet above ground grade and requires a review not less often than every 10 years of technological advances in air pollution control equipment to determine the feasibility of installing additional equipment or modifying existing equipment, taking into account the costs as well as the benefits of improved air pollution control. The contract called for the monitoring of the operation and efficiency of the air pollution control equipment and the furnishing of monthly reports showing the average month assay of the ash and sulphur content of the coal employed. The contract also provides that nothing therein would be construed as to relieve Edison from complying with all valid applicable air pollution control laws and regulations under Federal, State or County jurisdiction then or thereafter in force. 19. The Water User Contract obligated Edison, unless the Secretary of the Interior otherwise approved, to use coal mined from the Black Mesa area located on Indian Reservation land in Arizona as the fuel supply for the plant, with exceptions permitting the use of natural gas for ignition purposes at all times, and natural gas or other coal in the event of emergencies or unavailability of such coal. 20. On December 12, 1966, the Mohave Project Preliminary Agreement between Nevada Power Company, Salt River Project, and Edison was entered into to establish in a preliminary way the responsibility for construction and operation of the Mohave Project, the participation shares of each of the parties, an outline of the definitive agreements required to be negotiated and executed, and a reservation of the right of Edison to make available a 20% interest in the project to The Los Angeles Department of Water & Power. The Plant Site Conveyance and Co-Tenancy Agreement dated May 29, 1967, between Nevada Power Company, Salt River Project and Edison, and the Plant Site Conveyance and Co-Tenancy Agreement Assignment between Edison and The Los Angeles Department of Water & Power dated December 23, 1968, definitively established the ownership shares of the participants in the project and additional contracts among the participants were negotiated and signed at various dates from June, 1967, through December, 1968, when the participation of The Los Angeles Department of Water & Power was finalized. 21. On January 6, 1967, Edison and a predecessor in interest of Peabody Coal Company entered into the Mohave Project Coal Supply Agreement calling for the delivery by means of a 275-mile 16 inch coal slurry pipeline from lands held under mining leases dated February 1, 1964, from the Navajo Indian Tribe and from the Hopi and Navajo Indian Tribes, the latter lease covering the two tribes' undivided interests in lands within a Reservation created by the 1882 Executive Order of the President of the United States. The Mohave Project Coal Supply Agreement provides for the delivery of a minimum of 117 million tons of coal to the Mohave Project plant site over a 35-year period. Plans for the pipeline crossing of the Colorado River were approved by the Department of Interior, January 11, 1967. 22. On May 29, 1967, undivided interests in the plant site, the [2 ELR 20290] Water User Contract and the Coal Supply Agreement were assigned by Edison to Nevada Power Company and Salt River Project, and on December 23, 1968, an undivided interest in land and in the Water User Contract and Coal Supply Agreement were assigned to The Los Angeles Department of Water & Power. 23. Construction of both units commenced June 1, 1967, and on January 1, 1970, Unit 1 was 70% complete, Unit 2 was 40% complete, with overall construction 55% complete. To that date total expenditures aggregated approximately $110 million. Contractual commitments for approximately $200 million of the estimated final cost now estimated at $234 million had been made. 24. Pursuant to the provisions of the Water User Contract, the following federal approvals were granted: plans and designs for air pollution control (1968); designs and specifications for the ash disposal facility (October, 1970); plans and specifications for additional sewerage facilities for a maintenance building (January, 1971); plans for draining excess waste water from evaporation pond (March and April, 1971); and plans and specifications for construction of a second industrial waste water evaporation pond (April, 1971). 25. By June 1, 1971, construction of Unit 1 had been completed and was in commercial operation. At that date, construction of Unit 2 was 90% complete, with overall construction of the project 95% complete. An aggregate of approximately $200,700,000 had been expended. Unit 2 is now in commercial operation. 26. Applications on behalf of Nevada Power Company, Salt River Project and Edison for transmission rights-of-way were filed October 11, 1968, with the Bureau of Land Management and were granted by Decision issued December 5, 1968. Applications on behalf of all four participants were filed February 27, and April 22, 1969, for rights-of-way and easements covering respectively the Eldorado Substation and the Mohave-Eldorado 500 kv transmission line. The applicable rights-of-way and easements for the Eldorado Substation were acquired by Decision dated August 7, 1969, and for the transmission line by Decision dated December 30, 1969, which was corrected on January 8, 1970, to include The Los Angeles Department of Water & Power in conformity with the original application. Construction of the Eldorado Transmission System commenced December 1, 1968, and it was placed in operation December 16, 1969, at a cost of approximately $20 million. 27. There are no pending approval actions in the Department of the Interior for the Mohave plant except design of a proposed increase in the capacity of the waste water pond. 28. As of January 1, 1970, it was not practicable to reassess the basic course of action with respect to the Mohave Project. 29. Federal actions on the Mohave Project since January 1, 1970, have been shaped to minimize adverse environmental consequences. 30. An environmental impact statement has not been prepared with respect to federal actions on the Mohave Project. 31. The Navajo Project consists of the following components: (a) Three coal-fired electric generating units having a nameplate rating of 750 megawatts each, located approximately five miles east of Page, Arizona. (b) A 79-mile coal haul railroad which will transport coal from Peabody Coal Company's Black Mesa Mine located on the Navajo and Hopi Indian Reservations to the plant site for the Navajo Generating Station. (c) A 500 kv electric transmission line to transmit power and energy from the Navajo Generating Station to the McCullough Substation located in Southern Nevada. (d) Two 500 kv electric transmission lines to transmit power and energy from the Navajo Generating Station to the Westwing Substation located in Northwest Metropolitan Phoenix. 32. The participants in the Navajo Project are Arizona Public Service Company (14%), Salt River Project Agricultural Improvement and Power District (21.7%), United States of America (24.3%), Tucson Gas & Electric Company (7.5%), Nevada Power Company (11.3%), Department of Water and Power, City of Los Angeles (21.2%). The United States was authorized to participate in the plant to supply power for the Central Arizona Project byP.L. 90-537, 82 Stat. 885, Act of September 30, 1968. 33. The decision to locate the Navajo Generating Station near Page, Arizona, was reached after an intensive study of the need for power in the future, the locations of a fuel source and cooling water, proximity to transmission facilities and load centers for the participants, and social and environmental factors. In June of 1968, Secretary of the Interior Stewart Udall met with representatives of various organizations which had expressed an interest in additional electric generating capacity in the Southwest. As a result of the meeting, a joint study committee was formed and designated as the Navajo-Four Corners Steering Committee. The Steering Committee undertook as its task the investigation of the feasibility of developing major coal-fired thermal electric generating stations at Page, Arizona, Four Corners, New Mexico, and any other suitable alternate location. 34. After an intensive investigation by eight separate task forces, the following conclusions were reached: (a) Based upon the load growth in the area, expressions of interest of potential participants and economic transmission system development, there was need for three 770 megawatt units in the years 1974, 1975 and 1976. (b) The most economical alternative to supply these requirements would be the installation of three 770 megawatt units at a site located near Page, Arizona, which would be fueled by coal from Black Mesa coal deposits on lands leased by Peabody Coal Company from the Navajo and Hopi Indian Tribes. It was further concluded that the most economical means of transporting the coal from the Black Mesa Mine to the plant site would be by train. (c) The capacity generated by the three 770 megawatt units could be economically transmitted to the load centers of the utilities expressing an interest in participating in the Navajo Project over three 500 kv lines. One 500 kv line would go from the Navajo Generating Station west to the McCullough Substation, located in the southern tip of the State of Nevada near Boulder City. Two 500 kv lines would go from the Navajo Generating Station plant site south to a point in northwest Phoenix. Each of the participants in the Navajo Project would then require additional transmission facilities so as to transmit their entitlement from the Navajo Generating Station from the terminus of the 500 kv system into their respective systems. (d) The Navajo Project offered the most economical source of pumping capacity for the Central Arizona Project. 35. On September 30, 1969, the Secretary of the Interior filed with Congress the report required by the Colorado River Basin Project Act advising Congress of his findings that participation in the Navajo Project represented the most suitable alternative for supplying the power requirements of the Central Arizona Project. Shortly thereafter, and prior to December 31, 1969, the participants entered into the Navajo Project Participation Agreement dated as of September 30, 1969, obligating them to proceed with the Project. 36. The participants in the Navajo Project were committed to proceed with this project as of September 30, 1969, and the fact that the National Environmental Policy Act of 1969 was to become effective on January 1, 1970, did not influence in any way the date on which the participants in the Navajo Project committed themselves to proceed with the Project. 37. The generating station is located on Navajo tribal lands.The Navajo Tribal Council entered into an agreement for lease of these lands in September, 1969. The lease was approved by the Department of the Interior in December, 1969. A water service contract (14-06-400-5033) for up to 34,100 acre-feet of consumptive use annually was executed by the Department of the Interior January 17, 1969. A grant of various rights-of-way, easements, and access roads was approved by the Department of the Interior in December, 1969. 38. Under the water service contract and other project agreements, the owners are required to install the most effective commercially proven electrostatic or equally effective air pollution control equipment then available, periodically update such equipment, [2 ELR 20291] and operate the plant in compliance with operational criteria specified therein. The contract does not relieve the contractor from compliance with applicable, Federal, State and local air and water pollution control standards. Disagreement as to the implementation of these provisions is subject to arbitration. 39. The coal for the Navajo Project is to come from Black Mesa, Arizona. Part of the coal lease is on Navajo tribal lands and part is on a joint use area of the Navajo and Hopi Tribes. The Navajo Tribe entered into two coal mining leases (14-20-0603-8580 and 14-20-0603-9910) in 1964 and 1966, respectively. The Hopi Tribe entered into a coal mining lease (14-20-0450-5743) in June, 1966. The coal is to be hauled by rail 78 miles to the plant site. An application by the plant participants for rights-of-way and easements from the Navajo Tribe for the coal-haul railroad was approved in January, 1971. 40. Prior to January 1, 1970, the participants in the Navajo Project had expended funds and entered into contracts for the purchase of equipment and services for the Navajo Project. The amount involved in these expenditures and contracts totaled $107,437,000 as of January 1, 1970. Actual physical construction of the Navajo Generating Station commenced in April of 1970, and actual physical construction of the Coal Haul Railroad commenced in February of 1971. 41. Pursuant to the terms and conditions of the Water Service Contract of January 17, 1969, and the Indenture of Lease with the Navajo Tribe, the Department of the Interior must review and approve the plans for the following major systems relating to air and water quality control: (g) Particulate Removal Equipment (j) Waste Water Drainage and Discharge (l) Pollution Monitoring Instrumentation 42. The non-federal participants in the Navajo Project must receive the power to which they are entitled from the Navajo Project by the projected completion dates for the three units of that Project, June, 1974, 1975 and 1976 respectively, in order to supply the anticipated requirements of their customers. It is necessary that the construction schedules be essentially met in order to have the generating units in commercial operation as required. Unavailability of power from the Navajo Project according to schedule would place in serious jeopardy the ability of the participants to serve their customers. 43. Following a determination by the Secretary of the Interior that such actions were necessary to permit the project to proceed in accordance with the established construction schedules and that these particular approvals could not be delayed to permit preparation and filing of a final environmental impact statement, the Department of the Interior approved the license agreement for the pipeline and holding reservoir for water and coal haul railroad construction in April, 1970, a water service agreement for plant construction in 1970, an easement for water intake pipeline in October, 1970, a section 323 Grant covering the railroad right-of-way in January, 1971, plans and specifications for the waste water treatment plant in March, 1971, a water service contract for construction of the coal haul railroad in April, 1971, and the chimney height in May, 1971. 44. In 1969, Bechtel Corporation, Morrison-Knudsen Company, Inc. and Dames & Moore were employed by Salt River Project, the Project Manager, to make independent studies concerning the environmental aspects of the Navajo Generating Station and coal haul railroad. In no case has the Salt River Project or any of its officers, agents or employees dictated to these companies the conclusions that they were to reach in these studies and the studies have in fact been independent. 45. Subsequent to January 1, 1970, each of the environmental systems related to the Navajo Generating Station has been re-evaluated and substantial modifications made in the environment systems as a result of this re-evaluation. Prior to January 1, 1970, it was estimated that the environmental systems relating to the Navajo Generating Station would cost $28,010,000 and, as of November 1, 1971, it is estimated that the environmental systems will cost $138,360,000. 46. On January 1, 1970, it was not practicable to reassess the basic course of action established by the participants in obligating themselves to proceed with the Navajo Project. However, alternates to each of the environmental systems have been reviewed and substantial alternations made in these systems in order to minimize their adverse environmental impact. The following major environmental systems have been reassessed since January 1, 1970: (a) The original design for the Lake Pumping Station called for extending pipes over the cliffs of Lake Powell. These pipes would have been visible from the Lake. Since January 1, 1970 the design of the water in-take facilities was modified and present plans call for slant drilling so as to avoid any defacement of the Lake Powell cliffs and to recess the Lake Pumping Station so that it will not be visible from any point on Lake Powell. (b) The original plans for the Navajo Generating Station called for returing up to 5,900 acre feet of cooling tower blowdown to Lake Powell. The return of water was permitted under the terms and conditions of the Water Service Contract entered into between the Salt River Project and the United States Bureau of Reclamation. After extensive hydrologic and environmental studies, it was concluded subsequent to January 1, 1970 not to return any water to Lake Powell notwithstanding the fact that the return of the cooling tower blowdown would have no appreciable environmental effect. This decision was made following consultations with representatives from state agencies in the States of Colorado, New Mexico, Utah, Arizona, Nevada and California, and with representatives from several federal agencies, including the Environmental Protection Agency, National Park Service and the Bureau of Sport Fisheries and Wildlife. (c) The original plans for the Navajo Generating Station called for cold precipitators for fly ash collection.Subsequent to January 1, 1970 a decision was made to install hot electrostatic precipitators because their collection efficiency is not affected by the sulfur content in the coal and it is anticipated that they will provide a higher degree of collection efficiency and be more reliable. (d) The original plans for the Navajo Generating Station did not call for SO2 removal systems. Subsequent to January 1, 1970 a decision was made to install SO2 removal systems on all three units. This decision was made after extensive meteorological studies and after consultation with representatives from the Tennessee Valley Authority, United States Bureau of Reclamation, Environmental Protection Agency and the Arizona State Health Department. (e) The original plans for the Navajo Generating Station did not contain any provision providing for flexibility in boiler combustion. Subsequent to January 1, 1970 a decision was made to modify the boilers to permit greater flexibility in combustion so as to provide an opportunity for reducing the formation of nitrogen oxides in the combustion process. (f) The original plans for the Navajo Generating Station did contain provisions for dust abatement. Since January 1, 1970 additional dust abatement facilities have been planned for installation at the Navajo Generating Station. (g) Modifications have been made in the design of the Navajo Generating Station since January 1, 1970 to improve the appearance of the Generating Station. These include housing the turbine generators, using high intensity lights on the stacks rather than painting them red and white, and improved color treatment to better blend in with the surrounding area. All of these modifications have resulted in substantial increased costs. In addition, since January 1, 1970 a reassessment has been made of the environmental systems, both major and minor, and numerous [2 ELR 20292] improvements made in the minor environmental systems. 47. The participants in the Four Corners, San Juan, Mohave, Navajo and Huntington Canyon Plants requested that the meteorological consultants for these projects jointly assess the cumulative impact of these plants on air quality in the Colorado River Basin. The conclusions of that study were as follows: (a) Based on the considerations of local winds, terrain effects and professional judgment, the Colorado Plateau region can be divided into specific "air sheds." The Four Corners and San Juan Plants are in the same air shed. Each of the other plants is in a separate air shed. (b) Evidence indicates little significant meteorological interaction between these air sheds during stagnant conditions. (c) Because each major effluent source is located within a different air shed, contaminants from each major source will not interact under stagnant conditions. (The Four Corners and San Juan power plants were considered as a single source for the purposes of this study.) (d) During a postulated 23-day stagnation period (January 4-27, 1968), the area was ventilated three times. Even if extended periods of stagnation were to take place, the natural pollutant removal processes of the atmosphere would limit the buildup of contaminants. (e) Meteorological studies indicate that stagnation may last as longas thirteen days in this area. However, each separate air shed should be evaluated further since the degree of stagnation, and its consequences, will vary among the different locales. 48. In 1971, the Hydraulics and Hydrology Group of Bechtel, Incorporated, researched and computed the effects of the San Juan, Four Corners, Navajo, Kaiparowits and Mohave thermal electric power plants on the water quality of the Colorado River. The conclusions of this investigation were as follows: (a) The net withdrawal of salts from the River by the five plants will be about 166,000 tons per year, under the assumption of a withdrawal of 208,000 acre feet per year. (b) The withdrawal of water is in accordance with the Water Service Contracts executed between the United States and the respective utilities, the apportionment of water to the States of Utah, New Mexico and Arizona, and the Law of the River. (c) As the usage of water in the Upper Basin is increased to develop fully the allocations to the respective states, it may be expected that the water presently released downstream in excess of contract requirements will be reduced. Consequently, there will be less surplus water available to dilute downstream return flows and other sources of salt concentration. (d) Under present modified conditions the effect of the five power plants on salt concentrations at Lee Ferry will be zero; below Hoover Dam, salinity will increase by 0.4 percent or 3 ppm. At Imperial Dam the projected increase will be about 7ppm under the 1941-1966 present modified conditions or 10 ppm under projected future inflow conditions; against background salinities of 832 ppm and 869 ppm, respectively, these increments amount to 0.8 and 1.2 percent. It will be nearly if not entirely impossible to detect these increments with standard methods of chemical water quality analysis and instrumentation as used by the U.S. Geological Survey. Since the incremental salinity cannot be subjected to measurement, it seems clear that effects, economic or otherwise, will also be unmeasureable. (e) Releases to Mexico will continue to be made in full accord with Treaty requirements. In addition, drainage wells and bypass drains have been constructed and reservoir operating procedures have been adopted to minimize salinity in the water crossing the International Boundaries. The effect of the diversions to the five power plants on the quality of water delivered to Mexico will, at worst, cause no more than about 1 percent increase in concentration, and may, in fact, cause a decrease in concentration. (f) The only planned return of water to the River from the withdrawal will be from a "blowdown" from the Four Corners cooling pond. There will be no return of water or salt to the River from the other four plants. (g) The salt removed from the blowdown water will be largely disposed of in impermeable ponds to prevent return seepage and upon completion of the plant operation the ponds will be buried to prevent blowing of dry salts over the area. (h) The addition of the five large thermal electric power plants to the economic and industrial structure of the Colorado River Basin is in full accord with the planned development of the water resources of the Basin. The plants will not create significant unforeseen problems of of water availability or water quality. 49. The Secretary of the Interior has determined that, with the exception of the Four Corners and San Juan Plants, the cumulative environmental effect of the following described plants:
50. The Secretary of the Interior has made the following substantive decisions pertaining to the Navajo Project: (a) The basic course of action calling for the timely completion of the Navajo Project was not subject to reassessment as of January 1, 1970. (b) Certain incremental federal actions, as described in Section 11 of the Guidelines, had to be taken prior to the filing of the Final Environmental Statement. (c) As of February 4, 1972, the Secretary had adequate information on the basis of which to prepare and file a Final Environmental Statement pertinent to the Navajo Project. (d) As of February 4, 1972, the Department of the Interior had in all respects complied with the procedural requirements of the National Environmental Policy Act as they apply to the Navajo Project. 51. A draft environmental statement pertaining to all aspects of the Navajo Project was filed with the Council on Environmental Quality on October 5, 1971, following earlier filings made some four months prior thereto on individual aspects of the Navajo Project. Copies of the draft environmental statements were circulated to interested parties, as set forth more fully in the statement itself. The Final Navajo Environmental Statement was filed with the Council on Environmental Quality on February 4, 1972. 52. The Final Navajo Environmental Statement adequately performs the responsibility prescribed by the National Environmental Policy Act, including the analysis of the five factors required to be analyzed by that statute, assessing and evaluating alternates, and sets forth relevant data to be considered by governmental [2 ELR 20293] decision-making authorities in taking major federal action having a significant effect on the environment. 53. The Department of the Interior made an independent assessment of the environmental and economic consequences of the Navajo Project and utilized and relied upon expert information from the Tennessee Valley Authority, the National Oceanic and Atmospheric Administration, and the Environmental Protection Agency, and independent studies made by consultant employed by the participants in the Navajo Project. 54. There are now pending before the Secretary of the Interior — and have been pending in excess of six months while the preparation of Section 102 statements has proceeded — applications for federal approvals necessary for the Navajo Project. Delay in making these approvals beyond about the middle of March would result in very substantial construction delays, which in turn would result in seriously jeopardizing the Navajo participants to complete the Navajo Project according to schedule and supply the power needs to their customers. 55. Utah Power & Light Company, Salt Lake City, Utah, is constructing an electrical generating station in Huntington Canyon, Utah, approximately 29 miles by road southwest of Price, Utah. The plant will utilize coal from an underground mine approximately 2 1/2 miles from the station to be operated by Peabody Coal Company. A 430 mw unit is planned to be on the line in 1974. The plant is located 235 miles northwest of the Four Corners Plant and 170 miles north of the Navajo Station site. Its site is primarily on state and privately owned lands, although the company was issued a Bureau of Land Management five-year temporary use permit on March 11, 1971, for approximately forty acres. 56. Planning for the project commenced in 1966 when the Power Company's ten-year load forecast showed that additional generating capacity would be required by the year 1974. Lead time from planning to operation of a new steam plant requires seven to eight years. A detailed study of nine sites located in Utah, Wyoming, and Idaho was made in 1967 and 1968. The study took into account basically seven factors, namely: (c) Cost of plant and supporting facilities, including land, road and railroad access to site. (d) Proximity of plant site to major load centers to minimize electrical transmission distances. (e) Environmental impact of the plant and its associated facilities. (f) Availability of labor to support the plant complex during both the construction and operating stages. (g) Acceptance of the plant complex by the local community. This study resulted in the choice of Huntington Canyon area as the optimum site for the generating plant. 57. The availability of coal and water were first investigated in 1967, and this investigation continued through the remainder of 1968. A letter of intent covering coal purchases was executed in September, 1960. Efforts were then pressed for preparation of plans for the plant, for the reservoir and for the transmission line. 58. Discussions for purchase of water stock from private companies were completed and a contract was signed in December, 1969. Acquisitions of options for purchase of water from individual stockholders began in 1969. Application for a reservoir was filed in 1968 and site investigation and engineering were commenced in the fall of 1969. Negotiations were also started with interested governmental agencies for relocation of the Huntington Canyon highway. 59. Bids were invited for the turbo-generator and boiler, and a letter of intent to purchase the turbo-generator was issued August 17, 1969. Selection of an engineering firm was started in 1969. A weather study was commenced the same year. 60. The engineering contract was awarded to Stearns-Rogers on March 17, 1970, and the letter of intent to purchase the boiler was submitted. Design and engineering of the plant site, clearing, grubbing, and preparation of specifications for the procurement of major equipment were started. Weather studies were continued. 61. Planning for the construction of the transmission line also commenced in 1966 when the company's ten-year load forecast revealed that the company would not be able to meet its load requirements by 1974 without additional generation and transmission capacity. The first physical efforts to select a route from Camp Williams to the Huntington area were made by airplane in the winter of 1968. Early in 1969, negotiations with the United States Forest Service and the Bureau of Land Management commenced, looking toward the acquisition of approval for the line. Authorization to begin work on surveying and mapping was given to Engineering Enterprises on May 9, 1969, and a formal contract awarded July 26, 1969. 62. In November, 1969, BLM consulted Utah Power to ascertain the alignment of the proposed line in relation to public lands so that the impacts of the proposed project on the environment could be carefully evaluated. 63. A field review of the entire route of the proposed line in Utah was made by representatives of the Asst. Secretary for Water and Power, Bureau of Land Management, Bureau of Reclamation, Bureau of Indian Affairs, U.S. Forest Service, Utah Power & Light Company, the press (including the Salt Lake Tribune, Deseret News) and T.V. (including KSL-TV in Salt Lake City). Wide publicity was given by press and T.V. to the concern for the environment under the government's new environmental standards, and the opportunity for public comment on the proposal. 64. Based on detailed on-site examinations of the proposed route, BLM required several changes to preserve natural beauty, esthetic, historic, archeological, and other public values on BLM administered public lands. These changes were made prior to the filing of the formal application by Utah Power & Light Company on January 8, 1970. 65. No objections to the construction of the line were received by BLM and after careful consideration of the environmental aspects of the proposed project, together with Power Marketing Recommendations signed February 5, 1970, by the Assistant Secretary for Water and Power Development, the right-of-way was approved. The survey was 65% complete by January 1, 1970; design engineering was being completed; material requisitions were prepared, construction contracts had been prepared and the bulk of material orders had been placed. The company received approval for a right-of-way over public lands from the Bureau of Land Management in February, 1970. The line was put into service on June 26, 1971. The total cost of the line and appurtenant facilities was approximately $26,800,000. 66. Delay of the construction of the company's first unit at Huntington Canyon, now scheduled for service in June, 1974, would render it impossible for the company to satisfy its load demands projected for 1974. The capability of this unit amounts to approximately one-third of the Utah system capability at that time. This generation cannot be replaced with a practical alternative in the less than three years remaining. A loss of generating capability of this relative magnitude would seriously jeopardize the reliability of service to customers. 67. The major impact from a moratorium on the first unit at Huntington Canyon to the Utah Power and Light Company would be: (a) System reserve capability would change from a maximum of +15% to a -8% in 1974, and sufficient capability would not remain to supply all the firm load. The resulting reliability and continuity of the service would be unacceptable to customers and would result in wide-spread damage. (b) Considerable monetary loss would be suffered by the company, resulting from funds already expended and committed on the Huntington Canyon Project. It is estimated that one year's delay would result in an increased construction cost of approximately $6,000,000. (c) Maintenance required on existing units would be curtailed since contemplated reserves would be wiped out. The already unacceptable reliability resulting from loss of the Huntington unit would further deteriorate. 68. As of January 1, 1970, it was not practicable to reassess the basic course of action with respect to the Huntington Canyon [2 ELR 20294] Project. 69. Federal action on the Huntington Canyon Project since January 1, 1970, has been shaped to minimize adverse environmental consequences. 70. A draft environmental impact statement prepared by the Bureau of Reclamation (Hungtinton Canyon Generating Station and Transmission Line, March, 1971) was sent to the Council on Environmental Quality and circulated for review and comment in April, 1971. A final statement has not yet been filed. 71. The participants in this project are Tucson Gas & Electric Company ("Tucson") and Public Service Company of New Mexico ("New Mexico"). Two units are presently planned with a capacity of about 330 megawatts each. One unit is under construction with scheduled operation in 1973. No planned dates have been announced for operation of the other unit. The plant is to be constructed on non-Federal, non-Indian lands. 72. The growing demand for electricity and the need for additional generating facilities, together with the availability of low sulphur coal and water in the area, necessitated the decision to construct the San Juan coal-fired steam generating plant near Farmington, New Mexico. 73. On November 1, 1961, New Mexico acquired two (2) coal leases from the Bureau of Land Management covering 4,912 acres in San Juan County, New Mexico. On August 13, 1963, rights under a Bureau of Land Management coal lease, contiguous to the other lease, covering 1,800 acres in San Juan County, New Mexico, were acquired. 74.On March 22, 1968, Senate Joint Resolution 123, being Public Law 90-272, authorized a "water contract" between the United States and New Mexico which allowed the United States to release to New Mexico 20,200 acre feet of water annually from the Navajo Reservoir. The "water contract" was signed April 11, 1968, and clearly indicates that the proposed use of water was for thermal electric generation. 75. The "water contract" required New Mexico to install and operate equipment employing the most effective and acceptable equipment available under the technology known at the time of the design of the plant in order to minimize smoke, fly ash and dust in stack emissions. Designs and plans for the air pollution control equipment, stack and other plant features that might affect air pollution were subject to written approval by the Secretary of Interior or his designated agent in advance of construction, installation, removal or major modification. Periodic review of the equipment by the Secretary was included in the contract and disputes weremade the subject of arbitration. 76. Because of the necessity of substantial lead time, a turbine generator was the subject of a letter of intent from New Mexico to Westinghouse Corporation dated October 11, 1967. This letter was modified on December 10, 1968. 77. As of July 25, 1969, Tucson had agreed to participate in the proposed generating station on an equal basis with New Mexico. 78. On August 1, 1969, a firm order was placed for the steam turbine generator at a price of approximately $6,500,000. By letter of October 20, 1969, Stearns-Rogers Corporation was selected to engineer and construct the first unit at the San Juan station. On November 17, 1969, New Mexico committed itself to purchase the boiler for the San Juan generation station at a cost of approximately $9,000,000. 79. On January 1, 1970, the San Juan Plant was an existing project or program and as of that date it was not practicable to reassess the basic decision that the project be constructed. 80. On April 1, 1970, the Bureau of Land Management approved modification of a 1961 mining lease by increasing the lease by 120 acres, which land was contiguous to the existing leases and did not consist of an area large enough for independent development. Such lands would have been isolated if not included within said lease. 81. The Department of Interior selected the Tennessee Valley Authority to examine the air pollution control devices proposed to be installed at the San Juan Plant. After that study and consultation with the National Air Pollution Control Administration, the United States Department of Health, Education and Welfare, and the New Mexico Department of Public Health and Social Services, the Secretary of Interior's designated agent approved the design of the air pollution control equipment by letter dated October 21, 1970, in accord with the approval rights in the contract of April 11, 1968. Because of the need for substantial lead time in ordering the air pollution control equipment, it was necessary to issue the approval at the time it was done. The approval was shaped so as to minimize adverse environmental consequences. It requires that particulate emissions are not to exceed 0.05 pounds per million Btu heat input. The equipment ordered is guaranteed by the manufacturer to remove 99.5% of the particulate matter. The guarantee is well over the water contract minimum level. 82. Federal action since January 1, 1970, has been shaped to minimize adverse environmental consequences. 83. A statement in accord with Section 102(2)(C) of the National Environmental Policy Act with regard to the San Juan Project is now being prepared. 84. The Kaiparowits Project consists of interests under coal mineral leases relating to lands on the Kaiparowits Plateau in Kane County, Utah, water appropriation and water service rights, and interests in applications for rights-of-way and plant sites, which are jointly owned in equal undivided interests by the corporations named below, with the objectives of: (a) Establishing procedures and principles for the initiation of specific projects for the production and utilization of recoverable coal, water supply and plant sites, and (b) Establishing methods of development of the coal reserve area in an orderly manner with the utilization of coal resources for electric generation or for other uses to be agreed upon by the three participants named below. 85. The Kaiparowits Project is a resource development project as distinguished from a project for the construction of a power generating plant. There are no existing agreements or obligations with respect to constructing a power generating plant or any other facilities for utilization of the coal and water. No federal action has been taken with respect to this project since January 1, 1970. 86. The ownership interests in the Kaiparowits Project are as follows: Resources Company, a subsidiary of Arizona Public Service Company 33-1/3% Mono Power Company and/or Associated Southern Investment Company, subsidiaries of Southern California Edison Company 33-1/3% New Albion Resources Company, a subsidiary of San Diego Gas & Electric Company 33-1/3% 87. In October, 1969, the owners executed a water service contract to take 102,000 acre feet annually from Lake Powell. This contract contains air and water pollution control provisions similar to those contained in the contracts for the Navajo plant and the other plants. 88. The owners received coal leases from the Bureau of Land Management in November, 1965. 89. An environmental impact statement has not been prepared with respect to federal actions to date on the Kaiparowits Project. 90. To meet confirmed power needs in the Southwestern United States, there now are five coal-fired generating plants distributed over a wide area with units in service or with units under construction and to be completed by 1977. These plants and their anticipated 1977 operating capacities are as follows: [2 ELR 20295]
92. The Southwest Energy Study does not deal with the need for the five power plants described above. The existence and production of those plants are basic underlying assumptions for the study. The study is primarily concerned with future proposed electric production and distribution facilities. i.e., new areas and new projects that are not under construction. The Court concludes as matters of law, the following: 1. The Court has jurisdiction over the subject matter of the complaints and the parties hereto. 2. The plaintiffs have stated a cause of action upon which relief can be granted. 3. There is no genuine issue of material fact. 4. The National Environmental Policy Act (hereafter called NEPA) is an attempt by Congress torequire Federal Officials and Agencies to study and give adequate consideration to how their decisions may affect the environment when called upon to make a decision or recommendation or report where the underlying proposed Federal action is of major proportions and will significantly affect the quality of the human environment. The Act sets forth the Congressional declaration of policy and general guidelines or requirements to achieve such policy. 5. Nothing in NEPA is designed to oust any Federal Agency or responsible official from any authorized functions or duties, but merely sets forth prerequisites to the exercise of such authority. 6. Said Section 4332 of Title 42 of the United States Code requires that an impact statement be issued before proposals of major Federal actions are acted upon by Federal Agencies when such proposals of major Federal actions will significantly affect the quality of human environment. 7. Under NEPA, the Federal Agency or responsible official involved, must prepare a draft or preliminary environmental impact statement which analyzes in detail the environmental implications of proposed actions and considers alternatives thereto; the draft impact statement serves as a basis for comments by States, Counties, Municipalities, institutions and individuals. 8. A purpose of the draft statement is to allow any Federal Agency, which has jurisdiction by law or special expertise with respect to any environmental impact involved, to submit comments on such impact. 9. The public has a right to participate in drafting the final environmental impact statement by submitting comments and environmental information upon any alleged legal or factual matter in the draft impact statement. 10. A purpose of the impact statement under NEPA as required in Title 42, Section 4332(C) is to inform the Ageny involved and all interested parties of the environmental impact a particular proposal would have on human environment, before such proposal goes through the Agency's review processes; the statement shall accompany any such proposal. 11. Another purpose for having an Agency prepare a final environmental impact statement is to insure that the agency has before it a report describing the environmental impact of a proposal before definitive administrative action is taken to carry out such proposal. 12. An environmental impact statement is necessary under NEPA, if: 1. There is a proposal for legislation or other major Federal action; 2. Such proposal for legislation or other major Federal action must have a significant affect on the quality of the human environment and, 3. Any project or program initiated prior to January 1, 1970, must involve the above two requirements and the basic course of action must be such that it is practicable to reassess it. 13. Neither, the National Environmental Policy Act nor the Guidelines adopted pursuant thereto require administrative hearings or adversary proceedings pertaining to environmental impact statements. 14. NEPA cannot be enforced retroactively as to projects and programs involving major Federal actions taken before, or in existence on, January 1, 1970. 15. NEPA cannot be enforced retroactively as to proposals involving major Federal action where the Agency has already initiated its review processes of the proposal prior to January 1, 1970. 16. Under NEPA, Section 4333, Congress recognized that there could not be instant compliance by Agencies of the Federal Government and granted them until July 1, 1971, to bring their administrative regulations and current policies and procedures in conformity with NEPA. 17. Guideline 11 of the Guidelines for Federal Agencies under the National Environmental Policy Act issued by the Council on Environmental Quality (CEQ) on April 23, 1971, does not require environmental impact statements to be drafted and issued on programs and projects in which major Federal actions is involved when such programs and projects were initiated prior to January, 1970, and where it is not practicable to reassess the basic course of action. 18. Under Guideline 11, CEQ, where it is not practicable to reassess a course of action, involving major Federal action, the lead Agency should shape further incremental major Federal actions so as to minimize adverse environmental consequences and should take into account any environmental consequences not fully evaluated at the outset of the project or program. 19. A single, environmental impact statement detailing all projects in the region described by plaintiffs is not required by the National Environmental Policy Act. 20. As of January 1, 1970, the Four Corners Project, the Mohave Project, the Navajo Project, the San Juan Project and the Huntington Canyou Project were existing projects or programs within the contemplation of the Guidelines for Federal Agencies under the National Environmental Policy Act. 21. With respect to the Four Corners Project and the Mohave Project, the basic course of action and all major Federal actions initiated thereunder were established prior to January 1, 1970. 22. An environmental impact statement was not required in connection with any Federal actions to date on the Four Corners Project.Defendants and Intervenors are entitled to judgment with respect to the Four Corners Project as a matter of law. 23.An environmental impact statement was not required in connection with Federal actions to date on the Mohave Project. Defendants and Intervenors are entitled to judgment with respect to the Mohave Project as a matter of law. 24. The Navajo Project was a project initiated prior to the enactment of the National Environmental Policy Act (January 1, 1970) and on January 1, 1970, it was not practicable to reassess the basic course of action established by the participants including the lead Agency, the Department of Interior. 25. With respect to the Navajo Project, Guideline 11, CEQ has been complied with. Any adverse environmental consequences have been minimized and environmental consequences not fully evaluated at the outset of such Project have been taken into account. 26. A final environmental impact statement has been filed on the Navajo Project. The filing of such statement is not mandatory on the part of the Secretary of the Interior, but it is permissible. (NEPA is not retroactive and under Guideline 11, CEQ, any major Federal action significantly affecting the quality of the human environment, commenced after January 1, 1970, arising out of a project, which basic course of action cannot be reassessed is further incremental major Federal action). 27. A further incremental major Federal action significantly affecting the quality of the human environment arising out of a [2 ELR 20296] Project, which basic course of action cannot be reassessed after January 1, 1970, is any major Federal action which completes or contributes to the completion and full working operation of the project. 28. As of January 1, 1970, it was not practicable to reassess the basic course of action with respect to the Huntington Canyon Project. 29. Federal action on the Huntington Canyon Project taken since January 1, 1970, has been shaped to minimize adverse environmental consequences. 30. A draft environmental impact statement on Huntington Canyon Project has been filed and review of it is taking place under a process contemplated by the National Environmental Policy Act. Such environmental impact statement is not mandatory and the lead Agency's filing of a draft statement is permissive. 31. The major Federal actions significantly affecting the quality of the human environment, taken in furtherance of the Huntington Canyon Project after January 1, 1970, were incremental major Federal actions under NEPA and Guideline 11, CEQ. 32. On January 1, 1970, it was not practicable to reassess the basic course of action with respect to the San Juan Project. 33. An environmental impact statement is being prepared with respect to the San Juan Project. Any filing of such an environmental impact statement is not mandatory, but is permissive. An environmental impact statement was not required in connection with Federal action to date on the San Juan Project. 34. Federal action on the San Juan Project taken since January 1, 1970, has been shaped to minimize the adverse environmental consequences. 35. The approval under the San Juan Project by the Bureau of Land Management of a leasing of an additional 120 acres of mining land contiguous to the land leased under the 1961 mining lease is not a major Federal action significantly affecting the quality of the human environment. 36. All major Federal actions significantly affecting the quality of human environment taken with respect to the San Juan Project after January 1, 1970, were incremental major Federal actions under NEPA and Guideline 11, CEQ. 37. The defendants and intervenors are entitled to a summary judgment as a matter of law as to the Navajo Project, the Huntington Canyon Project and the San Juan Project. 38. The Court has no jurisdiction to fashion or lay down administrative processes and procedures for the Federal defendants to exercise their expertise and to carry out the purpose of NEPA. 39. No major Federal action significantly affecting the quality of human environment has been taken with respect to the Kaiparowitz Project and no environmental impact statement was required in connection with any Federal action to date on said Project. Defendants and intervenors are entitled to judgment with respect to the Kaiparowitz Project as a matter of law. 40. Plaintiffs' motion for summary judgment should be denied. 41. The motions of defendants and intervenors for summary judgment should be granted. 1. Plaintiffs' motion for leave to file its First Amended Complaint was granted by the Court on February 9, 1972. 2 ELR 20287 | Environmental Law Reporter | copyright © 1972 | All rights reserved |