National Wildlife Federation v. Babbitt

No. 88-0301 (D.D.C. July 30, 1993)

The court holds that the U.S. Department of the Interior's (DOI's) February 1986 decision to resume coal leasing under its 1982 federal coal leasing program without adding wetlands unsuitability to its criteria for making land use decisions was arbitrary and capricious. In December 1987, the DOI promulgated final rules that amended its 1982 regulations governing the federal program's unsuitability criteria and multiple-use tradeoff screens. The final rules were based, in part, on the DOI's February 1986 decision not to promulgate any new unsuitability criteria for the land use planning stage, but to leave consideration of such criteria, including reclaimability and wetlands, to the multiple-use phase.

Following its decision in Natural Resources Defense Council v. Jamison, 23 ELR 20406 (1982), the court first holds that res judicata bars plaintiffs' challenge to the DOI's decision not to include a reclaimability unsuitability criterion in the 1987 rulemaking. In that case, the court held that the DOI's decision was consistent with the Surface Mining Control and Reclamation Act.

The court then holds that the DOI's decision that its 1987 unsuitability criteria rulemaking did not require a full environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) was not arbitrary and capricious. The decision to promulgate the 1987 regulations was part of a process to review the 1982 coal leasing program that began in 1985, involving the issuance of a draft EIS, a review of unsuitability criteria, the issuance of a final EIS supplement, and a February 1986 record of decision (ROD) on the final EIS supplement. The nearly two-year delay in publishing the proposed rules to implement the 1986 ROD does not make those regulations a new "proposal" for NEPA purposes. Additionally, the DOI's decision not to prepare a supplemental EIS for its 1987 rulemaking was not arbitrary and capricious, because no substantial changes in the proposed action or significant new circumstances or information arose between the February 1986 ROD and the December 1987 final rules.

Finally, the court holds that the February 1986 decision not to include a wetlands unsuitability criterion without adequately explaining the decision was arbitrary and capricious. The court holds that agency action taken pursuant to Executive Order 11990 — which requires agencies to take action to minimize destruction, loss, or degradation of wetlands while engaging in land resources planning — has the force and effect of law, imposes a nondiscretionary duty on agencies, and is reviewable under § 706(2) of the Administrative Procedure Act. The court holds that the DOI erred by failing to consider evidence about the functioning of the land use planning system and failing to adequately respond to evidence regarding the necessity of a wetlands unsuitability criterion. The DOI's assertion that wetlands protection could be adequately addressed in the multiple-use tradeoff screen process is not supported by evidence in the record. Moreover, the DOI did not consider the relevant factors and alternatives in making its decision.

Counsel for Plaintiffs
Glen P. Sugameli
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Defendant
Alfred T. Ghiorzi
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[24 ELR 20200]

Bryant, J.:

Memorandum and Order

Introduction

When the Bureau of Land Management ("the Bureau") determines potential uses for large areas of federal land in the process known as "land use planning," it identifies areas acceptable for further consideration for coal leasing by applying four "screens":

1) the potential for development of coal;

2) a list of "unsuitability criteria" mandated by various statutes, regulations, and Bureau policies;

3) multiple-use tradeoffs, including alternate resource values; and

4) surface owner opposition.¹

The "unsuitability criteria" place certain mandatory restrictions on land found unsuitable, while the "multiple-use tradeoffs" permit the Bureau to balance competing interests, including the interest in leasing coal, in determining land use.² On December 8, 1987, the Department of the Interior ("the Department") promulgated final regulations amending the unsuitability and multiple-use tradeoff screens.³ Plaintiffs Natural Resources Defense Council, Inc. ("NRDC") and National Wildlife Federation ("NWF") brought suit under the Administrative Procedure Act ("APA"), claiming the Department's actions are "arbitrary and capricious" and violate the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), the National Environmental Policy Act of 1969 ("NEPA"), and Executive Order 11,990 (1977).⁴

Background

The federal coal leasing program has suffered continual upheaval for more than twenty years. Consequently, some historical background may be helpful in understanding the issues still before this court.

In 1970, the Bureau conducted a study that found that the quantity of federal coal lands under lease was rising sharply while actual production from those lands was falling.⁵ As a consequence, in 1971, the Department began an informal moratorium on coal leasing, formalized in February 1973, permitting new leases only "to maintain existing mines or to supply reserves for production in the near future." January 1986 Secretarial Issue Document ("SID") at 2.

In May 1974, the Department released a Draft Environmental [24 ELR 20201] Impact Statement (Draft "EIS") for a new coal leasing program. The September 1975 Final EIS, which made some significant changes from the Draft EIS Proposed Action, faced immediate challenge in federal district court. In September 1977, the court found the September 1975 Final EIS inadequate, enjoined the Department from implementing the new coal leasing program, and ordered the Department to prepare a new Final EIS. NRDC v. Hughes, 437 F. Supp. 981 (D.D.C. 1977), modified 454 F. Supp. 148 (D.D.C. 1978).

The Department chose instead to "develop a new program," incorporating the legal requirements of a number of statutes bearing on coal leasing that had since become law, including the Federal Coal Leasing Amendments Act of 1976 ("FCLAA"), the Federal Land Policy and Management Act of 1976 ("FLPMA"), and the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"),⁶ SID at 2.

In April 1979, the Department completed a new programmatic EIS and on July 19, 1979, promulgated extensive new regulations.⁷ Those regulations included a list of twenty mandatory "unsuitability criteria" to be applied during land use planning (codified at 43 C.F.R. § 3461.5 (1981)). The Department considered, and rejected, a proposal to include lack of "reclaimability" [sic] of lands after surface mining in the unsuitability criteria, on the grounds that this highly technical determination could be performed more economically at the mine plan approval stage.⁸ The Department also deferred inclusion of a "wetlands" unsuitability criterion at that time pending further research.⁹ The 1979 regulations have been amended numerous times, but still provide the basic structure for the coal leasing program.

Lease sales under the 1979 regulations began in January 1981. SID at 2. Shortly thereafter, the "fragile consensus" permitting federal coal leasing collapsed. Id. at 1. In February 1981, a new Secretary of the Interior called for comments on modifying the coal leasing regulations of the 1979 program to make them less burdensome on industry. On December 16, 1981, the Department published proposed rules.¹⁰ On July 30, 1982, the Department promulgated final rules substantially modifying the coal leasing program.¹¹ On September 28, 1982, plaintiffs in the present suit, NRDC and NWF, along with eight other organizations, brought suit challenging the 1982 modifications. Plaintiffs alleged violations under the APA of SMCRA, FLPMA, and FCLAA, and claimed that the 1982 modifications constituted "major Federal action[] significantly affecting the quality of the human environment" under NEPA, requiring a new EIS, or in the alternative an EIS Supplement.¹² Among the issues contested by plaintiffs in 1982 was a decision not to apply the "unsuitability criteria" to lands that had already been leased but were not yet producing coal.¹³

In April and October 1982, the Department held coal lease sales in the Powder River Basin in Southeast Montana and Northeast Wyoming that were widely criticized for allegedly obtaining far less than fair market value. Departmental rules previously required bids to be evaluated against an independent assessment of the fair market value of a given lease prepared by the U.S. Geological Survey. The Department formally deleted this requirement the day before the first sale. SID at ES-5. A report by House Appropriations Committee staff estimated that the Department sold the leases for $ 60 million less than fair market value, while a General Accounting Office ("GAO") study calculated the underpayment at $ 100 million.¹⁴

This scandal led to the suspension of nearly all federal coal lease sales for almost four years. In July 1983, Congress established the Commission on Fair Market Value Policy for Federal Coal Leasing (the "Linowes Commission") to review the Department's coal valuation procedures and make recommendations for improvements. Congress suspended all coal lease sales (except emergency leasing) until ninety days after the Linowes Commission published its report. In September 1983, Congress directed the Office of Technology Assessment ("OTA") to "assess the ability of the Federal coal leasing program to ensure the development of leases in an environmentally compatible manner."¹⁵

On July 9, 1984, the Secretary sent a letter to Congress indicating that the Department would undertake its own review of the 1982 and 1983 program changes.¹⁶ On September 4, 1984, the Department announced that it would maintain the suspension of all coal leasing pending preparation of a Supplemental EIS analyzing the impacts of the 1982 and 1983 changes.¹⁷ In addition, the Secretary created a task force to look specifically at the 1982 and 1983 decisions regarding the unsuitability criteria.

The Draft EIS Supplement took as its Proposed Action resumption of coal leasing under the 1982 program. This resumption was conditioned on some minor additional modifications responsive to recommendations made in the Linowes Commission and OTA reports. The required "No Action" alternative consisted of maintaining the suspension of coal leasing indefinitely.¹⁸

The Draft EIS Supplement appeared in February 1985, and the unsuitability criteria task force report, entitled A Review of the Unsuitability Criteria in Federal Coal Leasing ("Review of Unsuitability Criteria") in March 1985. The Department circulated the Review of Unsuitability Criteria for comments along with the Draft EIS. The Department issued the Final Supplemental EIS (also known as a Final Environmental Impact Statement Supplement or "FEISS") on October 4, 1985. The Department incorporated the Review of Unsuitability Criteria into the FEISS as Appendix No. 1.

On February 21, 1986, the Secretary of the Interior made twelve separate decisions with respect to the Proposed Actions in the FEISS, deviating in some respects from those Proposed Actions, but primarily determining to resume leasing under the 1982 program, with certain [24 ELR 20202] modifications. The Secretary made a distinct decision not to promulgate any new unsuitability criteria. SID at DS-3. Instead, the Secretary decided that six items proposed as new unsuitability criteria, including reclaimability and wetlands, would get "increased emphasis by the land manager in the multiple use analysis phase of land use planning."¹⁹ Id. The twelve decision sheets constituting the Secretary's February 21, 1986 Record of Decision on the FEISS were published in a Secretarial Issue Document ("SID") dated January 1986 [sic].

On May 15, 1987, the Secretary published proposed rules to amend the regulations governing the unsuitability criteria and multiple-use tradeoff screens.²⁰ The accompanying statement indicated that the proposed changes followed directly from the recommendations of the OTA Report and the Secretary's February 1986 decisions relating to the unsuitability criteria. The Department promulgated final rules on December 8, 1987.²¹ Plaintiffs filed their complaint February 5, 1988, amended November 28, 1990.

The Present Dispute

I. SMCRA

SMCRA requires that lands where the Secretary determines that "reclamation . . . is not technologically and economically feasible" must be declared "unsuitable for all or certain types of surface mining operations." 30 U.S.C. § 1272(a), (b). Plaintiffs argue that in order to comply with SMCRA, the December 1987 coal leasing regulations must include "reclaimability" as an unsuitability criterion applied during land use planning. In addition, plaintiffs argue that because SMCRA applies to all federal coal lands, whether leased or not, exempting only lands in which lessees had made "substantial legal or financial commitments" prior to passage of SMCRA, the regulations must provide that the unsuitability criteria be applied to already leased lands during land use planning rather than at the mine plan approval stage.²²

As explained above, the lack of a reclaimability unsuitability criterion in the regulations dates to 1979, while the exemption of leased lands from application of the unsuitability criteria during land use planning dates to 1982. Defendants argue that SMCRA's sixty-day statute of limitations makes both decisions unreviewable; but that in any case the regulations are consistent with SMCRA.²³

Plaintiffs raised the identical issues as Counts V and VI of their September 28, 1982 Complaint in Jamison. Plaintiffs acknowledge that the allegations raised here are "virtually identical." Plaintiffs' July 18, 1990 Reply at 8. The court considers these issues res judicata. In Jamison, this court held that the Secretary's 1982 actions in modifying the coal leasing program renewed the SMCRA statute of limitations on the decision regarding the reclaimability criteria originally made in 1979. Jamison, 815 F. Supp. at 465-66. However, this court rejected the "reclaimability" claim on the merits, holding that the Secretary's decision to make the determination of reclaimability at the mine plan approval stage rather than the land use planning stage of the regulatory process was consistent with SMCRA, if perhaps unwise. Id. at 466-68. This court similarly upheld the decision to apply the unsuitability criteria to already leased lands at the mine plan approval stage. Id. at 467 n.59. It is not necessary to consider whether the 1986 of [sic] 1987 actions at issue would also be sufficient to renew SMCRA's statute of limitations, because no occurrences between 1982 and 1987 provide grounds to revisit the merits of either SMCRA claim.

II. NEPA

Under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., federal agencies must include an Environmental Impact Statement ("EIS") in every "recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).²⁴ In addition, regulations issued by the Council on Environmental Quality ("CEQ") require an agency to prepare a Supplemental EIS if "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns; or . . . [t]here are significant new circumstances or information [24 ELR 20203] relevant to environmental concerns and bearing on the proposed action or its impact." 40 C.F.R. § 1502.9(c)(1)(i), (ii). CEQ regulations are entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).

It is well established that under NEPA "[a]doption of official policy, such as rules, regulations, and interpretations" may qualify as "major Federal action." 40 C.F.R. § 1508.18(b)(1). Plaintiffs claim that the rulemaking that began with proposed rules on May 15, 1987, constituted such a "proposal for . . . major Federal actions significantly affecting the quality of the human environment," requiring preparation of a new EIS.²⁵ Defendants argue that the 1987 regulations are exempted from NEPA review by § 702(d) of SMCRA, codified at 30 U.S.C. § 1292(d), but that even if the regulations are subject to NEPA, they are adequately supported by the October 1985 FEISS.²⁶ The court does not agree that regulations related to SMCRA unsuitability review are exempt from NEPA review, and will consider the merits of plaintiffs' NEPA claim.²⁷

A. Standard of Review

This court reviews the agency's failure to prepare a new or Supplemental EIS, so far as it concerns the agency's evaluation of the facts, under the "arbitrary or capricious" standard of the APA, 5 U.S.C. § 706(2)(A). Cf. Marsh v. Oregon Natural Resources Council, 490 U.S. 360 [19 ELR 20749] (1989) ("arbitrary or capricious" review of decision not to prepare a Supplemental EIS). The court therefore determines "whether the decision was based on a consideration of the relevant factors" and "whether there has been a clear error of judgment." Marsh v. Oregon, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 [1 ELR 20110] (1971)).

B. The Requirement for a New EIS

Plaintiffs' position is that the May 15, 1987, proposed regulations constitute a new "proposal for major Federal action significantly affecting the quality of the human environment" separate and distinct from the "proposal" put forward as the "Proposed Action" in the October 1985 FEISS. Plaintiffs point to a statement accompanying the December 1987, final rules (responding to plaintiffs' comment letter on the proposed rules, once again demanding new unsuitability criteria) that during the "decision process" the Secretary "decided against the addition of any new [unsuitability] criteria." 52 Fed. Reg. 46,489 (1987).

Plaintiffs are correct that the decision to promulgate the 1987 regulations was not a decision to do nothing or to maintain the status quo, neither of which would require a new EIS. Defenders of Wildlife v. Andrus, 627 F.2d 1238 [10 ELR 20163] (D.C.Cir. 1980) (agency decision to do nothing to stop potentially significant state action required no EIS); Alaska v. Andrus, 591 F.2d 537 [9ELR 20137] (9th Cir. 1979) (same); Committee for Auto Responsibility v. Solomon, 603 F.2d 992 [9 ELR 20575] (D.C. Cir. 1979) (decision to allow status quo activity requires no EIS). Rather, promulgation of the 1987 regulations was a decision to go forward with a previously agreed upon change in the status quo. However, plaintiffs invite the court into a hall of mirrors in which every missed opportunity to adopt plaintiffs' rejected recommendations, every "decision" to go ahead with previously planned action as planned, is a new "proposal" that must be supported by a new EIS. Plaintiffs view the decisions made between May 1987 and December 1987 in isolation, divorced from their historical context, and from the processes, including preparation of the February 1985 Draft EIS Supplement, the March 1985 Review of Unsuitability Criteria, the October 1985 Final EIS Supplement, and the February 1986 Record of Decision, out of which the December 1987 final rules emerged.²⁸

In reality, the December 1987 final regulations closely track the recommendations in the March 1985 Review of Unsuitability Criteria appended to the October FEISS, and the decisions regarding the unsuitability criteria made by the Secretary in February 1986. Plaintiffs themselves call the December 1987 rules "regulations to implement the Secretary's 1986 decision regarding the unsuitability criteria." Plaintiffs' March 12, 1990 Memorandum in Support of Their Motion for Summary Judgment at 15. The December 8, 1987, regulations are but an expression of the Secretary's February 21, 1986, decision to resume, in slightly modified form, the 1982 coal leasing program.

The primary goal of NEPA is to ensure that information on environmental impacts and the impacts of alternatives be gathered in time to inform the agency's decision whether or not to go forward with a proposed action.²⁹ When the proposed action is promulgation of final regulations, a draft EIS is generally issued together with publication of the proposed rules.³⁰ Circulation of the Draft EIS, filing of the Final EIS, and publication of a Record of Decision approving the decision to adopt the proposed rules must precede promulgation of the final rules.³¹ The process for EIS Supplements is substantially the same.³²

This case is somewhat unusual in that the process of preparing the Draft EIS Supplement, Final EIS Supplement, and Record of Decision was at once improperly late and abnormally early. The process was improperly late to support the July 30, 1982, final rules, because promulgation of the final rules should have been preceded by the equivalent of the October 1985 FEISS and the February 1986 Record of Decision. The process was early to support the May 15, 1987, proposed rules, which would normally have appeared as proposed rules along with the March 1985 Draft EIS, and been promulgated in final form shortly after publication of the February 1986 Record of Decision.³³

Nevertheless, a delay of two years in publishing proposed rules to implement a Record of Decision already made does not necessarily make those regulations a new "proposal" for purposes of NEPA.³⁴ If the decision to go ahead and promulgate regulations consistent with [24 ELR 20204] an earlier Record of Decision on a Final EIS is automatically considered a new "proposal" requiring a new full EIS, agencies could not implement earlier decisions through subsequent informal rulemaking without preparing a second, duplicative EIS. This cannot be correct.³⁵ Given the unusual circumstances of this case, the Department's decision not to consider the 1987 rulemaking a new "proposal" was not "arbitrary or capricious."

C. The Requirement for an EIS Supplement

Supplementation of the 1979 programmatic EIS has not been handled well. In the case of the 1982 amendments to the coal leasing regulations, the process mandated by NEPA and CEQ rules was not followed. The 1982 proposed rules should have been accompanied by a Draft EIS Supplement, because they involved "substantial changes in the [1979] proposed action that are relevant to environmental concerns." 40 C.F.R. § 1502.9(c)(1). The July 1982 final rules should not have been implemented until a Final EIS Supplement had been filed, secretarial decisions on its Proposed Action made, and a Record of Decision issued.

On September 28, 1982, plaintiffs sued to force the Secretary to comply with NEPA. In March 1985, the Secretary issued a Draft EIS Supplement roughly equivalent to the one that should have been prepared in 1982. In April 1986, plaintiffs agreed that the resulting October 1985 FEISS and February 1986 Record of Decision were sufficient to satisfy NEPA as regards the 1982 final rules.³⁶

The October 1985 FEISS also supports the Secretary's February 1986 decisions to resume coal leasing without adding new unsuitability criteria, and to make minor changes in the extant criteria, because the February 1986 Record of Decision did not select actions that would raise significant environmental concerns beyond those already raised by the 1982 program. In other words, the unsuitability criteria "missing" in 1986 were already "missing" in 1982. It follows from the Jamison plaintiffs' acceptance of the adequacy of the October 1985 FEISS as regards the 1982 decisions that the FEISS is also adequate to support the substantially identical February 1986 decisions regarding the unsuitability criteria.³⁷

The real issue for this court is whether, given the fact that the February 1986 Record of Decision was published abnormally early in relation to the December 1987 final rules, the Department must prepare another Supplemental EIS on its 1987 "decision" not to deviate in the rulemaking from the decisions made in the February 1986 Record of Decision.

No additional Supplemental EIS is necessary absent "substantial changes in the proposed action" or "significant new circumstances or information." 40 C.F.R. § 1502.9(c)(1)(i), (ii). Even if, in promulgating the 1987 rules, the Department again "decided" not to add new unsuitability criteria, this "decision" represented no change in the proposed action. Nor did "significant new circumstances or information" come to light in the period between February 1986 and December 1987. Consequently, it appears that no additional Supplemental EIS is necessary to accompany the December 1987 final rules. The Department's determination that an EIS supplement was unnecessary is not "arbitrary and capricious."

III. Executive Order 11,990

Executive Order 11,990, issued by President Carter on May 24, 1977, requires that, "in carrying out the agency's responsibility for . . . land resources planning," each agency "shall take action to minimize the destruction, loss, or degradation of wetlands." Executive Order 11,990 at § 1(a). Furthermore, agencies are required to avoid assisting construction in areas containing wetlands (permitting "construction" would include coal leasing) "unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use." Id. at § 2(a).

Plaintiffs claim that the Department of the Interior's long-standing failure to promulgate a wetlands "unsuitability criterion" to be applied during land use planning violates Executive Order 11,990, and that the Secretary's failure to " articulate a satisfactory explanation" for failing to do so during the 1987 rulemaking is "arbitrary and capricious" under the standards of the APA 5 U.S.C. § 706(2).³⁸

A. APA Review of Agency Action Pursuant to Executive Order

The APA states that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704.

In relevant part, the APA mandates that:

[t]he reviewing court shall —

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 706(2).

It is now fairly well-established that administrative action taken pursuant to an executive order is "agency action" within the meaning of APA § 706(2), so long as the executive order has the force of law and places substantive limits on agency discretion.³⁹

The court considers whether Executive Order 11,990 meets these two requirements. First, an executive order is to be "accorded the force and effect of a statute" when it has a "distinct statutory foundation." Ass'n for Women in Science v. Califano, 566 F.2d 339, 344 (D.C. Cir. 1977). The President's proclamations and orders have the force and effect of laws when issued pursuant to a statutory mandate or delegation of authority from Congress.⁴⁰ The President promulgated Executive Order 11,990, based on authority derived from the Constitution and unspecified statutes, "in furtherance of" NEPA, and in particular NEPA § 101(b)(3), codified at 42 U.S.C. § 4331(b)(3). The court is not faced with a situation where the President has acted in contradiction to a statute, or in the absence of legislative action.⁴¹ Rather, 42 U.S.C. § 4331(b) mandates ongoing executive action to promote the broad policies of NEPA.⁴² Congressional authorization for executive orders can be either "express or implied." United States v. New Orleans Public Service, Inc., 553 F.2d 459, 465 (5th Cir. 1977). The President acted under NEPA's implied authorization when he issued Executive Order 11,990. Consequently, the court finds that Executive Order [24 ELR 20205] 11,990 should be accorded "the force and effect of a statute." Ass'n for Women in Science, 566 F.2d at 344.⁴³

Second, judicial review under the APA does not extend to situations where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The "committed to ageny discretion by law" exception in the APA has been interpreted to apply "where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). However, APA review is available where law "place[s] substantive limits on agency action." Chrysler Corp. v. Brown, 441 U.S. 281, 318 (1974).⁴⁴

Executive Order 11,990 imposes a nondiscretionary duty on the heads of agencies to "take action to minimize the destruction, loss, or degradation of wetlands." EO 11,990 at § 1(a). In addition, the head of an agency may permit such damage or loss only after making a finding that "the proposed action includes all practicable measures to minimize harm to wetlands." Id. at § 2(a).

The Executive Order allows for some flexibility. In making this finding, "the head of the agency may take into account economic, environmental, and other pertinent factors." Id. In other words, measures to mitigate harm need only be "capable of attainment within relevant, existing constraints" to satisfy Executive Order 11,990. National Wildlife Federation v. Adams, 629 F.2d at 592.

However, the agency head is not free to do nothing to minimize harm to wetlands; nor free to permit damage to wetlands without having taken at least those mitigatory actions that are "capable of attainment within relevant, existing constraints"; nor free to permit damage to wetlands without making a finding that "all practicable measures to mitigate harm" have in fact been taken. These duties clearly place "substantive limits on agency action" as those terms are used in Chrysler v. Brown, 441 U.S. at 318, and constitute "law to apply" within the meaning of Overton Park, 401 U.S. at 410. Consequently, agency action pursuant to Executive Order 11,990 is subject to judicial review under the standards of 5 U.S.C. § 706(2).

B. Standard of Review

In February of 1986, when the Secretary of the Interior considered the option of adding a wetlands unsuitability criteria, a moratorium on all regional coal lease sales had been in effect for more than two years, and represented the "current policy" of the Department.⁴⁵ The decision to resume coal leasing upset that status quo. "If Congress established a presumption from which judicial review should start, that presumption [is] . . . against changes in current policy that are not justified by the rulemaking record." State Farm, 463 U.S. at 42 (1983) (emphasis in original). The 1987 rulemaking cannot be separated from the decision to resume leasing under the 1982 program; that rulemaking provided modifications upon which the Secretary had conditioned resumption of leasing. The appropriate standard for review is therefore that articulated in State Farm, which held that changes in the regulatory status quo must be subject to the same "arbitrary and capricious" review as initial promulgations:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including "a rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). In reviewing that explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., [419 U.S. 281, 285 (1974)]; Citizens to Preserve Overton Park v. Volpe, [410 U.S.] at 416. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation of its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

State Farm, 463 U.S. at 43.

C. Findings

The court finds serious defects in the process by which the Secretary made the February 1986 decision to resume coal leasing under the 1982 program without adding a wetlands unsuitability criterion.⁴⁶ The Department fundamentally failed to consider and address the available evidence about the actual functioning of the land use planning system, both with and without a wetlands criterion.

The Department acknowledged that the argument that application of the multiple-use tradeoff screen did not provide adequate protection for wetlands "is supported by examples . . . in which significant wetland areas . . . were moved forward into [the] coal regional activity planning process as suitable for further consideration for leasing.⁴⁷ The EPA and the Fish & Wildlife Service both argued for the necessity of a wetlands unsuitability criterion.⁴⁸ The record does not reflect that the Department gave serious consideration to their concerns. The Department's only response to the acknowledged problem of inadequate wetlands protection during the multiple-use tradeoff screen was a statement that "[t]he policies of the Department as expressed in the Executive Order [11,990] can be adquately implemented in the multiple resource trade-off [sic] screen."⁴⁹ This conclusory assertion is supported by no evidence in the record. In fact, elsewhere in the [24 ELR 20206] record the Department acknowledged that the land manager's ultimate decision in multiple-use assessment is completely discretionary.⁵⁰ The Department's claim regarding the sufficiency of the multiple-use tradeoff screen "runs counter to the evidence before the agency." State Farm, 463 U.S. at 43.

In addition, the Department does not appear to have "consider[ed] . . . the relevant factors" when it made the wetlands decision. State Farm, 463 U.S. at 43. Although addition of a wetlands unsuitability criterion was listed as an option for decision in the February 1986 Record of Decision, and the Department clearly "decided" against adopting it, there is no evidence that the Department seriously examined alternatives to its plan of adding no new unsuitability criteria and concentrating responsibility for wetlands in the multiple-use tradeoff screen.

For example, there is no apparent consideration of the fact that a wetlands unsuitability criterion had actually been successfully implemented during the 1978-1979 test period for the unsuitability criteria system.⁵¹ Research showed that the wetlands criterion was relatively inexpensive compared to other criteria and "did not significantly affect [total] areas of land designated unsuitable." FEISS at A-48. The Office of Coal Leasing, Planning, and Coordination ("OCLPC") also supported adoption of a wetlands unsuitability criterion. 1979 SID, Issue Paper 1, Lands Unsuitability Criteria, at 44-45.

The March 19, 1979, proposed rules originally contained a wetlands unsuitability criterion.⁵² Contrary to defendant's assertion, the wetlands unsuitability criterion was not "rejected" by the Secretary in his June 1, 1979 Record of Decision implementing the unsuitability criteria system.⁵³ Rather, final decision on that criterion was "deferred" primarily to permit a Wetlands Task Force to propose a clearer definition of what exactly would be considered "wetlands."⁵⁴ The Task Force came back with a proposed definition (and three alternatives) on December 21, 1979.⁵⁵ However, the Secretary never selected a definition of wetlands.

Thus, the decision deferred in June 1979 was ultimately made in February 1986 without the information that the Secretary had, in 1979, considered to be an essential prerequisite needed to make that decision. The Department made no effort to explain why a precise definition of wetlands was no longer needed in order to properly select or reject a wetlands unsuitability criterion. In fact, the Department offered no explanation as to why the wetlands unsuitability criterion should be rejected. Given that the available evidence in the record suggested that a wetlands unsuitability criterion offered substantial benefits and few significant disadvantages, the absence of discussion suggests that the evidence was not properly considered. There is simply no "rational connection between the facts found and the choice made." State Farm, 463 U.S. at 43. The process by which the Department made the February 1986 decision was "arbitrary and capricious." Id.

Conclusion

Plaintiffs' Motion for Summary Judgment is DENIED in part and GRANTED in part. Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. This matter is REMANDED to the Department of the Interior for further consideration consistent with this opinion. It is so ordered.

1. The planning process for federal coal leasing is explained at greater length in NRDC v. Jamison, 815 F. Supp. 454, 456-57 (D.D.C. 1992).

2. "The unsuitability criteria are to be viewed as nondiscretionary items based on law, policy, or regulations. The multiple resource screen is used to balance the leasing of coal with other land uses. The multiple resource trade-off [sic] screen considers other resources and is applied on a case-by-case basis at the discretion of the manager." 2 October 1985 Final Environmental Impact Statement Supplement A-25.

3. May 15, 1987 Proposed Rules at 52 Fed. Reg. 18,404-18,408 (1987); December 8, 1987 Final Rules at 52 Fed. Reg. 46,469-46,473 (1987), amending 43 C.F.R. Part 3420 and Part 3460 (1992).

4. Administrative Procedure Act of 1946, ch. 324, 60 Stat. 237, 5 U.S.C. §§ 551 et seq., as amended (1988 & Supp. IV 1992) ("APA"); Surface Mining Control and Reclamation Act of 1977, Pub. L. No. 95-87, 91 Stat. 445, 30 U.S.C. §§ 1201 et seq. (1988 & Supp. III 1991) ("SMCRA"); National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852, 42 U.S.C. §§ 4321 et seq. (1988 & Supp. III 1991) ("NEPA"); Executive Order 11,990, 42 Fed. Reg. 26,961 (1977) ("EO 11,990"), as amended by Executive Order 12,608, September 9, 1987, 52 Fed. Reg. 34,617 (1987).

5. From 1945 to 1970, the number of acres of federal coal land under lease increased from 80,000 to 778,000, while annual production from those lands declined from 10 million tons to 7.4 million tons. NRDC v. Hughes, 437 F. Supp. 981, 984 [7 ELR 20785] (D.D.C. 1977), citing Holdings and Development of Federal Coal Leases, Division of Minerals, Bureau of Land Management, November 1970.

6. Federal Coal Leasing Amendments Act of 1976, Pub. L. No. 94-377, 90 Stat. 1083, amending the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437, 30 U.S.C. §§ 181 et seq. (1988 & Supp. III 1991) ("FCLAA"); Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2743, 43 U.S.C. §§ 1701 et seq. (1988 & Supp. III 1991) ("FLPMA").

7. March 19, 1979 Proposed Rules at 44 Fed. Reg. 16,800-16,845; July 19, 1979 Final Rules at 44 Fed. Reg. 42,584-42,652 (1979).

8. 44 Fed. Reg. at 42,604 (1979). Land use planning is but the first of four stages, or tiers, in the process that precedes coal mining on federal lands. The second stage is "activity planning," at which time the Bureau delineates specific tracts and prepares a regional lease sale EIS. Third is the lease sale itself. Finally, at the mine plan approval stage, lessees submit an "operation and reclamation" plan to the Office of Surface Mining Reclamation & Enforcement ("OSM") that must be approved before mining permit will be granted. Deferring decisions to the mine plan approval stage apparently means that they will be made by OSM.

9. The Secretary created a task force to propose a clearer definition of wetlands. The task force presented four options, including a recommended definition, on December 21, 1979. As of the December 1987 Final Rules, no definition had been chosen.

10. Proposed Rules at 46 Fed. Reg. 61,390-61,440 (1981).

11. Final Rules at 47 Fed. Reg. 33,114-33,195 (1982). Some 1982 changes, not at issue here, resulted from the suit brought by Texaco and the National Coal Association challenging certain aspects of the 1979 regulations. Texaco v. Andrus, C.A. No. 79-2448 [11 ELR 20179]. National Coal Ass'n v. Andrus, C.A. No. 79-2458 (D.D.C. August 15, 1980). See 48 Fed. Reg. 54,819 (1983).

12. 42 U.S.C. § 4332(C).

13. 47 Fed. Reg. 33,114, 33,148 (1982). Plaintiffs also challenged the decision first made in 1979 not to include reclaimability as an unsuitability criterion. This court ultimately upheld both decisions. NRDC v. Jamison, 815 F. Supp. 454, 466-68 (D.D.C. 1992).

14. House Appropriations Committee staff report issued April 1983. The May 1983 GAO report is entitled Analysis of the Powder River Basin Federal Coal Lease Sale: Economic Valuation Improvements and Legislative Changes Needed.

15. Environmental Protection in the Federal Coal Leasing Program at iii. The Linowes Commission Report, issued in February 1984, made thirty-six specific recommendations. The Department responded with its own Review of Federal Coal Leasing, issued March 19, 1984. In May 1984, the OTA published its report, Environmental Protection in the Federal Coal Leasing Program, which contained ten specific recommendations to address environmental concerns. The Department responded on July 9, 1984, with its Review of Planning Considerations in Federal Coal Leasing.

16. The Department had further modified the disputed regulations on December 7, 1983, by changing unsuitability criteria [sic] number seven to eliminate protection of historic sites on private land, and sites eligible for, but not yet listed on, the National Register of Historic Places. 48 Fed. Reg. 54,819-54,820 (1983).

17. 49 Fed. Reg. 34,976 (1984). The Department maintains that its decision to prepare a Supplemental EIS on the 1982 and 1983 changes was not made in response to plaintiffs' 1982 NEPA claims, but purely because "the economic projections and assumptions that had formed a basis for the 1979 program decision had changed in the five years following the [program] decision." SID at 10.

In fact, the Department claims that its Supplemental EIS was voluntary, because the 1982 changes in the coal leasing program were insufficient to trigger the mandatory requirements of NEPA and the CEQ regulations for either a new or Supplemental EIS. In Jamison, the government argued that the preexisting, 1979 EIS "more than adequately addresses the 1982 amendments and no significant new information became available requiring supplementation of the [1979] EIS." Defendants' August 26, 1983 Memorandum at 23, Although the court disagrees, it found defendants' position on the lack of need for a new EIS "substantially justified," precluding an award of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1988 & Supp. III 1991). NRDC v. Lujan, 815 F. Supp. 451, 454 (D.D.C. 1992).

18. Analyzing the alternative of "no action" is required by 40 C.F.R. § 1502.14(d) (1992).

19. The Proposed Action under the FEISS proposed resuming "the existing [1982] program, as modified by rule, procedure, and policy proposals derived from the Linowes Commission and OTA reports as indicated on the [accompanying] decision sheets." SID at DS-1. The "alternatives" to the Proposed Action, considered as required by NEPA, included:

1) the "No Action Alternative" of permitting no coal leasing at all;

2) permitting only leasing by application and under the remaining preference right lease applications; and

3) permitting only "emergency leasing" and leasing under remaining preference right lease applications. Id.

Once the Secretary made the decision to resume coal leasing, the Secretary turned to eleven additional "decision sheets" to determine the conditions for resumption. As regards the unsuitability criteria, the decision sheet proposed three options. The option sought by environmentalists (option #1) consisted of adding six unsuitability criteria to the twenty already in place:

1) Wetlands,

2) Riparian Habitat,

3) Lands adjacent to air quality class I Prevention of Significant Deterioration (PSD) areas,

4) Federal lands contiguous to units of the National Park system;

5) Sole-source aquifers; and

6) Reclaimability.

By contrast, the option corresponding to the "Proposed Action" was not to select any new unsuitability criteria, but to add "manual and handbook guidance" giving increased emphasis to the proposed additional factors in the "multiple use analysis phase of land use planning." Id. at DS-3.

The third option, ultimately chosen with minor modifications (modifications given at SID DS-3a), was to promulgate new regulations indicating that the suggested unsuitability criteria be given "increased emphasis by the land manager in the multiple use analysis phase of land use planning." This change was included in the final regulations promulgated in December 1987, along with other minor recommendations following from the Review of the Unsuitability Criteria, 52 Fed. Reg. 46,472-46,473 (1987).

The troubling aspect of the unsuitability decisionmaking process is that option number one, the option of adding new unsuitability criteria, although discussed in the Review of Unsuitability Criteria, was not otherwise considered in the 1985 FEISS as a possible alternative to the Proposed Action. Thus, it is questionable whether this option, although presented to the Secretary for decision, was ever subject to realistic consideration.

20. Proposed Rules at 52 Fed. Reg. 18,404-18,408 (1987).

21. Final Rules at 52 Fed. Reg. 46,469-46,473 (1987). Changes ultimately adopted were limited to:

1) language to the effect that "particular emphasis" should be placed on "such items as wetlands, riparian habitat, sole-source aquifers, reclaimability of lands and lands adjacent to Class I air quality areas or units of the National Park system" during the multiple-use tradeoff screen of land use planning;

2) joint determinations of unsuitability where decisions affect land administered by another agency, id. at 52 Fed. Reg. 18,404;

3) application of unsuitability criterion number nineteen, alluvial valley floors, may be deferred to the mining permit approval stage, id. at 46,473;

4) unsuitability criterion number seven, sites on the National Register of Historic Places, expanded to once again include privately owned sites, id.;

5) unsuitability criterion number eight, national landmarks, no longer

contains an exemption for "an area or site of regional or local significance only," id. at 18,406;

6) unsuitability criterion number nine, threatened and endangered species, expanded to include proposed threatened or endangered species, and proposed critical habitat for those species, id. at 46,473; and

7) unsuitability criterion number fifteen, habitat for fish and wildlife species of high interest to a state, expanded to include habitat for "plants of high interest to the state." Id.

22. SMCRA at 30 U.S.C. § 1272(a), (b).

23. Defendants also claim plaintiffs lack standing to sue. Defendants raise complex questions under the ever less coherent law of standing. This court ultimately held in Jamison that the same plaintiffs (joined by others) had standing to bring some of the same challenges to what is effectively the same coal leasing program based on the same threatened injury, the same causal nexus, and the same potential redress. NRDC v. Jamison, 787 F. Supp. 231 [23 ELR 20406] (D.D.C. 1992) (vacating, after submission of affidavits supporting standing, NRDC v. Burford, 716 F. Supp. 632 (D.D.C. 1988) (granting government's motion for summary judgment due to plaintiff's failure to establish standing)). This court subsequently reaffirmed plaintiffs' standing in light of Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), finding that in contrast to the situation in Lujan, plaintiffs' members had "set forth specific facts showing actual use of lands affected by the disputed decisions," and finding that the federal coal program clearly constituted "final agency action." Jamison, 815 F. Supp. 454, 458 n.24. The 1983 final rules are clearly agency action, and the sins of omission, at least under SMCRA, of which plaintiffs complained in 1982 have not changed. Plaintiffs apparently have standing to sue. The court will not muddy these murky waters further.

24. In relevant part, the statute reads:

The Congress authorizes and directs that, to the fullest extent possible . . .

(2) all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the approval be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C).

25. CEQ regulations also require an agency contemplating proposals that are not categorically excluded to prepare an EIS or to make a finding that the action will have "no significant impact" on the human environment. 40 C.F.R. § 1501.4(e). To provide a basis for that choice, the agency must prepare an Environmental Assessment ("EA") "that serves to . . . [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a). In the present case, the agency, apparently not of the view that it faced decision on a new proposal, prepared no EA.

26. Defendants' May 8, 1990 Memorandum in Support of Their Motion for Summary Judgment at 22, 29.

27. 30 U.S.C. § 1292(d) only exempts certain particular actions under SMCRA §§ 1253(b), 1254, and 1273 from NEPA review. These provisions primarily concern integration of state and Federal lands programs. Unsuitability review is a nondiscretionary Secretarial duty mandated by a separate statutory provision, SMCRA § 522, codified at 30 U.S.C. § 1272, that cannot be delegated to the states. NEPA must be applied "to the fullest extent possible." 42 U.S.C. § 4332. See also Flint Ridge Development Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 791 [6 ELR 20528] (1976) (holding NEPA review precluded where there are "clear and fundamental conflicts of statutory authority"). Whatever conflict might exist between 30 U.S.C. § 1292(d) and NEPA review of actions under 30 U.S.C. § 1272 is certainly not "clear and fundamental." Consequently, this court finds that the NEPA exemptions in § 1292(d) do not apply to promulgation of unsuitability regulations under § 1272.

28. Viewed in isolation from the decision to resume coal leasing without adding any new unsuitability criteria, the changes made in December 1987 are minor, as well as being (with one exception, deferring application of unsuitability criterion number nineteen, alluvial valley floors, to the mine plan approval stage) ameliorative in nature. The December 1987 regulations are important because they provided the modifications necessary to permit coal leasing to go forward under the conditions spelled out in the February 1986 Record of Decision.

29. See, e.g., 40 C.F.R. § 1502.1 ("An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions."); § 1502.2(g) ("Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made."); § 1502.5 ("The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.").

30. CEQ regulations state that for "informal rulemaking, the draft environmental impact statement shall normally accompany the proposed rule." 40 C.F.R. § 1502.5(d).

31. Final rules that have an adverse environmental impact may not be implemented until after the agency issues its Record of Decision on the Proposed Action. 40 C.F.R. § 1506.1. Generally, decisions on the Proposed Action in an EIS may not be made until thirty days after the Final EIS has been filed with the EPA and notice of its filing given in the Federal Register. 40 C.F.R. § 1506.10(b).

32. 40 C.F.R. § 1502.9(c)(4).

33. To the fullest extent possible, NEPA procedures should "run concurrently rather than consecutively" with other agency procedures. 40 C.F.R. § 1500.2(c).

34. Under the CEQ regulations, a "proposal" exists "at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal." 40 C.F.R. § 1508.23. In the present case, alternative means of resuming coal leasing were put forward in October 1985 and a decision made in February 1986. The only "decision" made subsequently was to go ahead and implement the February 1986 decision. Cf. Kleppe v. Sierra Club, 427 U.S. 390, 406 [6 ELR 20532] (1976) ("contemplation" of project not to be equated with "proposal" under NEPA).

35. On the other hand, promulgation of final rules does provide the proper occasion to raise claims that an EIS or EIS Supplement is inadequate or that a new EIS Supplement is necessary.

36. On April 22, 1986, the parties in Jamison filed a Joint Motion, stating in part that:

[t]he preparation of the [October 4, 1985 FEISS] and the [February 21, 1986] SID, as well as other actions and decisions taken since this case was submitted, substantially satisfy Plaintiffs' claims in Counts I ("Failure to Prepare an Environmental Impact Statement"), II ("Failure to Prepare Adequate Environmental Assessment"), and III ("Violation of Administrative Procedure Act") of Plaintiffs' original [September 28, 1982] Complaint. They are therefore moot and may be dismissed, with prejudice.

Joint Motion at 2. This court granted the motion May 9, 1986.

37. Similarly, plaintiffs complain of substantive defects in the coal leasing program subsequent to the December 1987 final rules that were already present at the time of the 1982 final rules. It is difficult to see how a Supplemental EIS adequate to support the 1982 final rules, and by implication the 1986 Record of Decision, could be inadequate to support the 1987 regulations simply implementing the February 1986 decision.

38. Plaintiffs' July 18, 1990 Reply Memorandum at 30, citing NWF v. Hodel, 839 F.2d 694, 735 (D.C. Cir. 1988) (in turn citing Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 [13 ELR 20672] (1983)).

39. "Agency action," of course, is defined to include "failure to act." 5 U.S.C. § 551(13). See also Steven Ostrow, Note, "Enforcing Executive Orders: Judicial Review of Agency Action Under the Administrative Procedure Act," Geo. Wash. L. Rev. 659, 671-72 (1987).

40. Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 234 (8th Cir. 1975), cert. denied, 424 U.S. 966 (1976); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir.), cert. denied, 389 U.S. 977 (1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3, 7 (3d Cir. 1964); City of Waltham v. U.S. Postal Service, 786 F. Supp. 105, 130 (D. Mass. 1992); Conservation Law Foundation v. Clark, 590 F. Supp. 1467, 1477 (D. Mass. 1984); Watershed Associates Rescue v. Alexander, 586 F. Supp. 978, 987 (D. Neb. 1982).

41. Some presidential action that has no explicit statutory basis but has met with longstanding congressional acquiescence is also entitled to a presumption of congressional assent. Dames & Moore v. Regan, 453 U.S. 654, 678-82 (1981). On the other hand, presidential action that contradicts a lawful statute is plainly unsustainable. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).

42. In relevant part, the statute states:

[I]t is the continuing responsibility of the Federal Government to use all practicable means . . . to improve and coordinate Federal plans . . . [to] . . . (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.

42 U.S.C. § 4331(b)

43. Some courts have followed the same line of reasoning as this court, holding that NEPA makes an "implied authorization" for executive orders in furtherance of the Act, rendering those orders fully enforceable under the APA. See, e.g., City of Waltham v. U.S. Postal Service, 786 F. Supp. at 130-31 (Executive Orders 11,990 and 11,988); Conservation Law Foundation v. Clark, 590 F. Supp. at 1477 (Executive Orders 11,644 and 11,989).

Some courts have found executive orders issued pursuant to NEPA to be subject to APA review, but without explicitly finding that the orders were issued pursuant to a statutory mandate or delegation of authority from Congress. See, e.g., Daingerfield Island Protective Society v. Babbitt, C.A. No. 86-2396, 1993 U.S. Dist. LEXIS 7774, *35 n.36 (D.D.C. June 8, 1993) (Executive Order 11,988 provides basis for APA review, given that "prevailing trend on the issue of APA review of executive orders pursuant to NEPA seems to be in favor of granting such review"); National Wildlife Federation v. Adams, 629 F.2d 587, 591-92 [10 ELR 20959] (9th Cir. 1980) (assuming Executive Order 11,990 provides basis for APA review); No Oilport! v. Carter, 520 F. Supp. 334, 368 [12 ELR 20140] (W.D. Wash. 1981) (assuming Executive Order 11,988 provides basis for APA review).

One court, flatly rejected the "implied authorization" approach, holding that Executive Order 11,988 lacks the force and effect of law because it is not based on a "clear statutory mandate or delegation of authority from Congress." Watershed Associates Rescue v. Alexander, 587 F. Supp. at 987. Obviously, the law on this issue remains somewhat unsettled.

44. Note that in challenges to agency action or inaction, it is unnecessary for the court to weigh the factors articulated in Cort v. Ash, 422 U.S. 66, 78 (1975), for determining whether a law creates a private right of action. Regardless of whether a law creates a private right of action, APA review is available unless the conditions of 5 U.S.C. §§ 701(a)(1) or (2) are met. Chrysler v. Brown, 441 U.S. at 317-18. See also Daingerfield Island Protective Society v. Lujan, 797 F. Supp. 25, 29-30 (D.D.C. 1992) (agency action can be struck down under the APA regardless of whether the law violated creates private right of action).

45. State Farm, 463 U.S. at 42. In fact, the policy of not engaging in regional lease sales had been in effect for twelve of the previous sixteen years. The Department's "voluntary" extension of the congressionally mandated moratorium on all regional coal lease sales under the 1982 program, "embodie[d] the agency's informed judgment that, by pursuing that course, it w[ould] carry out the policies committed to it by Congress." Id. at 41-42.

46. Defendant protests that the decision to resume leasing without the criterion was outside the scope of the 1987 rulemaking. Defendant's December 19, 1990 Reply Memorandum at 18. However, as is explained at length above, the 1986 decision to resume leasing, contingent on minor modifications, cannot reasonably be separated from the regulations implementing those modifications. In fact, the 1987 rulemaking represented the most appropriate opportunity for plaintiffs to challenge practical implementation of the 1986 secretarial decision relating to the wetlands criterion.

47. 1986 SID at III-13.

48. The EPA supported a wetlands unsuitability criterion because it would "provide for protection of wetlands at the land-use [sic] planning level." FEISS at A-147. This statement implies the view that wetlands would not otherwise be protected during land use planning, i.e., during the multiple-use tradeoff screen. The Fish and Wildlife Service comment laid out its objections in the strongest terms:

Issue 24 (Wetlands) — The issue regarding the adoption of wetlands as a new coal unsuitability criterion is of extreme interest to FWS. However, the findings and conclusions state that there is no need for a wetland criterion and that Departmental policies expressed in the Wetlands Executive Order 11990 can be adequately implemented in the multiple resource tradeoff screen. In essence, the findings and conclusions are not supported by the analysis of Issue 24. . . . It is premature not to add a new criterion on wetlands without sufficient analysis. . . . The other unsuitability criteria do not afford adequate protection to comply with Executive Order 11,990, and the multiple resource tradeoff screen has proven ineffective in meeting this mandate.

FEISS at A-150.

49. FEISS at A-49.

50. See supra note 2. The court need not reach the question of whether the coal leasing regulations in their current form constitute a substantive violation of Executive Order 11,990. However, it should be noted that Executive Order 11,990 is an instruction to "take action." The Order gives each agency head some discretion in determining how best to achieve the aims of the Order, but does not give the agency head discretion to do nothing substantive to advance the aims of the Order. Deference requires that the court "may not substitute its own construction of a statutory provision [sic] for a reasonable interpretation made by the administrator of an agency." Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844 [14 ELR 20507] (1984). However, the court ought not to compound deference with undue credulity. In reality, a nonbinding suggestion that a long list of miscellaneous factors receive "particular emphasis" in a discretionary decision, 43 C.F.R. § 4320.1-4(e)(3) (1992), is little more than a sop to the parties that sought additional unsuitability criteria, and certainly does nothing meaningful to advance the substantive requirements of Executive Order 11,990.

51. See Coal Lands Unsuitability Criteria, Results of BLM Field Tests of Draft Criteria and Recommendations to the Department of the Interior for Revisions to the Criteria, Office of Coal Management and Divisions of Planning and Environmental Coordination, May 1, 1979. The interim wetlands unsuitability criterion had been published December 8, 1978. 43 Fed. Reg. 57,662, 57,669 (1978).

52. 44 Fed. Reg. 16,800, 16,837 (1979).

53. Defendant's December 19, 1990 Reply Memorandum at 18. The statement accompanying the July 19, 1979 final rules simply states that the Secretary "deleted proposed criterion [p], wetlands, with the directive that the Department's obligations under the relevant Executive Orders and other authorities be fully examined and new options be presented to him." 44 Fed. Reg. 42,584, 42,604 (1979). This statement can just as easily be read to support the position that the Secretary was concerned that the wetlands unsuitability criterion did not go far enough to meet the Secretary's legal obligations to protect wetlands.

54. FEISS at A-48. See also 1986 SID at III-13. The Secretary actually indicated that the task force should "[c]ome back to us with other options." 1979 SID at 48. The Office of Coal Management had also recommended that the wetlands unsuitability criterion be adopted with proposed rewording to reduce ambiguities. Administrative Record at 00903.

The July 19, 1979 final rules rejected three other proposed unsuitability criteria. The Secretary deleted "reclaimability" and "prime farm lands" because "these determinations cannot be made by the Bureau of Land Management at the pre-lease stage without significant expenditures of money and personnel; and the values are fully protected in the mine plan approval process under the Office of Surface Mining's permanent program regulations." The Secretary deleted "buffer zones for State lands designated unsuitable" primarily because it could potentially lead to state influence on federal unsuitability determinations in violation of SMCRA § 523. 44 Fed. Reg. 42,584, 42,604 (1979). These rationales simply do not apply to the wetlands unsuitability criterion.

55. December 21, 1979 Issue Paper on Proposed Options for a Wetlands Criterion to Determine Lands Unsuitable for Mining.