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24 ELR 20501 | Environmental Law Reporter | copyright © 1994 | All rights reserved Montana Ecosystems Defense Council v. Espy*No. 93-35676 (9th Cir. January 24, 1994)The court holds that the U.S. Forest Service's (Service's) final environmental impact statement (EIS) for proposed road construction projects and timber sales, for the purpose of salvaging stands of beetle-infested lodgepole pine in the Kootenai National Forest in Montana, was adequate under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act. The court holds that the Service properly considered only proposed timber sales at the time it prepared the final EIS, because NEPA, along with regulations at 40 C.F.R. § 1508.7 requiring the Service to consider cumulative impacts, apply only to agency actions that are proposed and not merely contemplated. The court holds that the timber sales not yet proposed are not sufficiently definite to require their inclusion in the EIS. Counsel for Plaintiffs Counsel for Defendants Lovell, J. (before Wright, Canby, and Nelson, JJ.): Memorandum** Stands of lodgepole pine in the Upper Yaak Area of the Kootenai National Forest are infested with the pine beetle. The [U.S.] Forest Service proposed road construction projects and timber sales in an effort to salvage the pine. It prepared a final environmental impact statement (FEIS) limited to 360 proposed harvesting units. The statement said also that future harvesting opportunities to salvage lodgepole pine were likely. After implementation, timber contracts were awarded for units outside the 360 considered in the FEIS. MEDC sued, alleging that the FEIS was inadequate under the National Environmental Policy Act (NEPA) and the Administrative Procedures Act because it did not consider the cumulative impact of those potential harvesting opportunities. The district court granted summary judgment for the government and MEDC appeals. We affirm. The [U.S.] Forest Service considered all proposed sales at the time it prepared the FEIS. It was not required to consider the cumulative impact of sales that were merely contemplated. NEPA is primarily a procedural statute. Save the Yaak Committee v. Block, 840 F.2d 714, 717 [18 ELR 20869] (9th Cir. 1988). Agency action may be set aside if the agency acted without observing the procedure required by law. Id. To review the adequacy of an EIS, [t]his circuit employs a "rule of reason" that asks whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. A reviewing judge must make a pragmatic judgment whether the EIS's form, content, and preparation foster both informed decision-making and informed public participation. . . . Once satisfied that a proposing agency has taken a "hard look" at a decision's environmental consequences, the review is at an end. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 [22 ELR 20569] (9th Cir. 1992) (citations and quotation marks omitted). MEDC argues that 40 C.F.R. § 1508.7 required the Forest Service to consider the cumulative impact of non-9A sales.1 Its argument falls short. The scoping regulation must be read in light [sic] 40 C.F.R. § 1502.4(a) and its emphasis on proposals. A proposal "exists at that stage in the development of an action when an agency . . . has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effect can be meaningfully evaluated." 40 C.F.R. § 1508.23. Moreover, cumulative impact is defined in terms of cumulative actions. 40 C.F.R. § 1508.25(a)(2). Cumulative actions are, by definition, proposed actions. Id. Our application of the regulations to the facts of this case is consistent with NEPA and case law interpreting NEPA. NEPA requires a federal agency to report on proposals and other major federal actions significantly affecting the environment. 42 U.S.C. § 4332(2) (C). The agency must address "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)(v). NEPA focuses on proposed, not contemplated actions. The Supreme Court noted this distinction in Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976). It said: The statute, however, speaks only in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, the impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects. Id. at 410 n.20 (emphasis in original). We have notedthis distinction. See, e.g., Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1498 [18 ELR 20321] (9th Cir. 1987) (mere fact that [U.S.] Army Corps of Engineers contemplated three dams did not require it to consider the third dam's cumulative impact before it reached the proposal stage). The cases cited by MEDC are distinguishable because they involved proposed federal action, i.e., action at that stage where an agency could meaningfully evaluate its impact. See, e.g., City of Tenakee Springs v. Clough, 915 F.2d 1308 [21 ELR 20001] (9th Cir. 1990); Sierra Club v. United States Forest Service, 843 F.2d 1190 [18 ELR 20749] (9th Cir. 1988); La Flamme v. F.E.R.C., 852 F.2d 389 [18 ELR 21276] (9th Cir. 1988); and Thomas v. Peterson, 753 F.2d 754 [15 ELR 20225] (9th Cir. 1985). An agency should "defer detailed analysis until a concrete development [24 ELR 20502] proposal crystallizes the dimensions of a project's environmental consequences." State of California v. Block, 690 F.2d 753, 761 [13 ELR 20092] (9th Cir. 1982). The non-9A sales were not sufficiently definite to require their inclusion in the FEIS. They were not proposed. The only foreseeable action related to the non-9A sales was that the [U.S.] Forest Service would begin evaluating additional harvest opportunities. As non-9A harvest opportunities reach the stage of proposal, their cumulative impact must be considered in light of the existing environment; and the condition of the environment will reflect Alternative 9A and the FEIS. See Kleppe, supra. If multiple non-9A sales are proposed concurrently, their cumulative impact must be considered together and in light of the FEIS. If MEDC believes that the [U.S.] Forest Service did not consider the cumulative impact of a specific non-9A sale, it might seek to enjoin that sale, but not the sales under Alternative 9A.2 MONTHLY EMISSIONS RECORD1
EMISSIONS WORKSHEET FOR MINOR VOC AND HAP SOURCES3,4 Date Prepared (day/month/year)
EMISSIONS WORKSHEET FOR MINOR VOC AND HAP SOURCES5,6 Date Prepared (day/month/year)
** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. 1. In its Record of Decision, the [U.S.] Forest Service implemented alternative 9A, one of 14 alternatives in the FEIS. 2. MEDC would need to point to more than the mere fact of the [U.S.] Forest Service's determination that there is no significant impact. Under the regulations, an agency may prepare an environmental analysis (EA) before an EIS. 40 C.F.R. § 1501.3. If the agency determines on the basis of the EA not to prepare an EIS, it must prepare a finding of no significant impact (FONSI). 40 C.F.R. § 1501.4(e). 1. Data in this table summarizes information from the table 1 worksheets for individual paints and solvents and other VOC and HAP sources at the listed stationary source. 2. Assumes all VOC and HAPs in paint or solvent are released into the atmosphere. 3. Assumes all VOC and HAPs in paint or solvent are released into the atmosphere. 4. Separate worksheet (table 1) required for each paint or solvent used. 5. Assumes all VOC and HAPs in paint or solvent are released into the atmosphere. 6. Separate worksheet (table 1) required for each paint or solvent used. 24 ELR 20501 | Environmental Law Reporter | copyright © 1994 | All rights reserved |