Mowry v. Central Electric Power Cooperative, Inc.

No. 72-1469 (D.S.C. August 1, 1973)

The court upholds a threshold determination by the Rural Electrification Administration (REA) that a power line project which the agency is funding does not constitute a major federal action significantly affecting the environment, and it therefore dissolves an injunction against construction of the power line right of way. In making its threshold decision that an environmental impact statement was not required by NEPA, REA complied fully with the Act and its own regulations by giving full, good faith consideration to environmental factors and by weighing the project's costs and benefits.Even though an environmental analysis which was required prior to REA approval of the loan was not submitted by the defendant power company until after that approval had been given, the study adequately examines the project's environmental effects and contains sufficient evidence to support REA's threshold determination and show that it was not arbitrary.

Counsel for Plaintiff
Franklin D. Beattie, Jr.
135 York Street S.E.
Aiken, South Carolina 29801

Counsel for Defendants
Pinckney Roberts
P.O. Box 5010
Hilton Head Island, South Carolina 29928

L. Mark Wine
Department of Justice
Washington, D.C. 20530

[3 ELR 20843]

Chapman, J.

FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER

These actions were tried together before this Court, without a jury, on July 24 and 25, 1973. The plaintiffs are brothers and their tracts of land are contiguous. The factual and legal issues in each case are identical and the cases were consolidated for discovery and trial by Order of this Court dates May 24, 1973.

In November 1972 Oliver W Mowry brought his action alleging that he owned a tract of land in a rural area of Aiken County, South Carolina and that the defendant Central Electric Power Cooperative, Inc., hereinafter referred to as Central had condemned a right of way across his property for the purpose of constructing a power line for the transmission of electricity, and that Central had commenced construction, cut down trees and cleared the right of way on the plaintiff's property and in so doing had not complied with the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., hereinafter referred to as NEPA, and the Environmental Quality Improvement Act of 1970, Public Law 91-224, Title II, 84 Stat. 114, hereinafter referred to as EQIA.

The Secretary of Agriculture and the Administrator of the Rural Electrification Administration were made parties since the funds to construct this line were obtained by Central from Rural Electrification Administration, hereinafter referred to as REA, an agency of the United States Department of Agriculture.

On December 8, 1972, this Court issued a Rule to Show Cause to the defendants in the Oliver W. Mowry case requiring them to appear before the Court on December 18, 1972, and show cause why the defendants should not be enjoined from initiating or continuing the construction of the power line pending a final hearing and disposition of the suit. After that hearing, the Court issued its order of December 21, 1972 enjoining the defendants from continuing to work upon or completing the construction of the electric line or poles upon Oliver Mowry's land pending a full hearing and determination of the action on its merits.

The Arthur S. Mowry action was filed on January 5, 1973 requesting the same relief and the Court issued a temporary injunction against the defendants preventing further construction on the Arthur Mowry tract. The plaintiffs contend that the right of way will destroy large areas of prime undisturbed wildlife woodland habitat, destroy or disrupt free flowing tributary streams, destroy the ecosystems therein, all in violation of the spirit and specific provisions of NEPA and EQIA and the rules and regulations promulgated thereunder. It is specifically contended that the defendant did not prepare an environmental impact statement prior to commencing this project, and that the environmental analysis of March 1973, prepared after the injunctions issued by this Court, is not adequate or in compliance with the law and that the approval of REA of this analysis is not a sufficient or adequate investigation into the possible ecological damage inherent in the construction of this project.

The defendants contend that under 42 U.S.C. 4332 (C) an environmental impact statement is not required except for: "major federal actions significantly affecting the quality of the human environment." The defendants also assert that under REA Bulletin 20-21 (A) (2) such environmental statements are not requirrd on electric transmission lines of less than 230 kilovolts, and the present line only carries 44 kilovolts. In issuing the temporary injunction this Court found that Central and REA had not complied with Section V (B) of REA Bulletin 20-21 which states:

"In connection with all applications for loans for facilities other than those described in paragraph (A) above, the applicants shall provide REA with information on the environmental aspects of the proposed construction. This information may be supplied subsequent to the filing of a loan application, but it must be supplied prior to final faction by REA."

Following the injunction Central retained Southern Engineering Company of Georgia to prepare an environmental analysis, which analysis was made with the assistance of Dr. Richard Stalter, Professor of Biology at St. John's University. It was submitted to REA, which made additional investigations and approved the environmental analysis and found that the contruction of the line would result in very limited environmental damage, not having any significant impact upon human environment and that the project was not a major federal action.

At the trial the plaintiffs attacked the environmental analysis and the final opinion of REA presenting numerous land owners as witnesses together with three experts in the field of ecology. The defendants presented as witnesses Dr. Stalter, an engineer from Southern Engineering Company, an environmental engineer from REA and defended the findings of the analysis and the opinion and approval by REA.

After hearing all the witnesses, reviewing the exhibits, reviewing [3 ELR 20844] the briefs and authorities submitted by the attorneys, considering the statutes and case law involved, the Court makes the following

FINDINGS OF FACT

1. The plaintiffs are citizens and residents of Aiken County, South Carolina and are the owners of two contiguous tracts of land in a rural area of the county. These tracts are traversed by a right of way obtained by Central Electric Power Cooperative, Inc., in anticipation of the construction of a 44 KV transmission line, which will run approximately 12.2 miles in length, from Aiken No. 2 Substation to Aiken Electric Cooperative New Ellenton Substation.

2.The defendant Central Electric Power Cooperative, Inc., is a cooperative membership nonprofit corporation organized under the Rural Electric Cooperative Act, with its principal place of business in South Carolina.

3. The defendant Earl L. Butz is the Secretary of Agriculture for the United States and defendant David A. Hamil is Administrator of the Rural Electrification Administration, an agency of the Department of Agriculture.

4. Central is the power supplier for its 15 members, which distribute electricity to the ultimate consumers.

5. A need for the proposed new line was established, since the areas of Warrenville, North Augusta, New Ellenton and Crossroads Substations are now served from a line having a single source of supply, with no alternates, and electrical outages have occurred in the area on four occasions in 1971 and one occasion in 1972. The consumers in these areas are increasing and the new line is not only needed but necessary to handle the present load and the expected increases of the future.

6. The proposed line will be constructed on single wood pole structures, approximately 55 feet in height, with horizontally mounted crossarms. The lines will consist of three conductors (aluminum strands with steel core) and one overhead ground wire. The poles will be approximately 500 feet apart and the 12.2 miles the line traverses has the following land use:

Residential - 1 mile; pasture or cultivated - 3.4 miles; woodlands - 6.7 miles; and swamp - 1.1 miles.

7. The right of way crossing the property of the plaintiffs has been cleared of trees and underbrush. This clearance occurred prior to the commencement of these actions. Subsequent to the injunction granted by this Court all work on this project stopped. Some parts of the right of way have not been cleared, while others have been cleared and the poles erected. There has been no maintenance of the cleared area of the right of way crossing the plaintiffs' properties following the clearing, due to the injunction.

8.The cost of this project, estimated at $293,000.00, is to be covered by a loan from REA.

9. At the time of the application for the loan, Central did not submit to REA information on the environmental aspects of the proposed construction. Following the injunction of this Court, an environmental analysis was prepared by Southern Engineering Company of Georgia in cooperation with Dr. Richard Stalter. This analysis was submitted to REA in March 1973. In early April 1973 the head of the transmission branch of REA came to South Carolina to inspect the project, view the line and proposed right of way, discuss the matter with Central and prepare findings and recommendations for REA.

10. The original draft of the environmental analysis was submitted to REA and at its request additional information and data was prepared and put into the final analysis. The environmental analysis accurately describes the scope and purpose of the project, the existing electrical facilities, the length and width of the right of way and the land over which it passes. The analysis also considers the environmental impact upon soils, flora, fauna, aesthetics, water resources, formally classified areas, maintenance, aviation, human activity, economy of the area and noise and electromagnetic radiation. This analysis also considers and makes findings as to the favorable and adverse environmental effects of the project and the alternates to the proposed projects, together with the irreversible and irretrievable commitment of resources and the questions raised by local citizens.

11. The environmental analysis submitted by Central and the independent investigation by REA led to a finding by REA that the line and related substation facilities would result in very limited environmental damage and that the financing and construction of such facilities did not involve any major federal action having a significant impact on the human environment. REA found the environmental analysis was sufficient for its needs and did not require a more detailed environmental statement in this case.

12. Having reviewed the analysis, heard the testimony of Dr. Stalter and the engineers from Southern Engineering Company and REA, the Court is convinced that this project involves very limited environmental damage and will not have a significant impact upon the human environment, and the decision and action by REA is reasonable and in compliance with the law, rules and regulations.

13. The Court finds that REA reached its decision after a full, good faith consideration of all relevant environmental factors and REA's approval of this project is well supported by the evidence.

CONCLUSIONS OF LAW

A. The Court has jurisdiction of the subject matter of this action pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. 701-706.

B. The National Environmental Policy Act at 42 U.S.C. 4332 provides:

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

(2) all agencies of the Federal Government shall —

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation or 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 proposal 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.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal Agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and view of the appropriate Federal, State and local agencies which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by Section 552 of Title 5 and shall accompany the proposal through the existing agency review processes;

(D) study, develop and describe appropriate alternatives to the recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.."

C. In Hanly v. Mitchell, 460 F.2d 640, 644 (2nd Cir. 1972), the Court held that the responsible federal agency has the authority to make its own threshold determination as to whether an impact [3 ELR 20845] statement is necessary. Under REA Bulletin 20-21 the agency made a finding that such an environmental statement would be required only on transmission lines of at least 230 kilovolts. Said bulletin also provided that the applicant for a loan from REA must provide information on the environmental aspects of the proposed construction. This information was not provided by Central at the time of its application for the loan or prior to final approval by REA, but has now been furnished to REA and considered and approved by it. The delay in furnishing the environmental information has resulted in a delay of the project during the injunction, but now that the information has been furnished and approved, the delay is not material to the present issue before the Court.

D. The scope of this Court's review of agency action is set forth in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) at page 416:

"Section 706(2)(A) requires a finding that the actual choice made was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.' 5 USC 706(2)(A). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. (citations omitted). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency."

This standard is further explained in a recent Fourth Circuit opinion, Conservation Council of North Carolina v. Froehlke, (No. 72-2197 decided Feb. 8, 1973) in which the Court stated that the District Court has the obligation to review the merits of a substantive agency decision to determine if it is in accord with NEPA, and that the Court had not discharged its function by merely determinating that the agency had acted in a procedurally correct manner upon a reasonably sufficient impact statement. The Fourth Circuit approved the language of the Eighth Circuit in the case of Environmental Defense Fund v. Froehlke, (No. 72-1427, 8th Cir. Dec. 14, 1972) as follows:

"District Courts have an obligation to review substantive agency decisions on the merits to determine if they are in accord with NEPA.

The review is a limited one for the purpose of determining whether the agency reached its decision after a full, good faith consideration of environmental factors made under the standards set forth in Section 101 and 102 of NEPA; and whether the actual balance of cost and benefits struck by the agency according to these standards was arbitrary or clearly gave insufficient weight to environmental factors."

E. In the present case the Court allowed the plaintiff to attack the environmental analysis submitted by Central and approved by REA. This attack came from the plaintiffs, other lay witnesses and from three experts in the field of ecology. However, the Court is not persuaded by this testimony that the project under consideration is a major federal action that significantly affects the quality of the human environment. Naturally any condemnation of a citizen's land and cutting of his trees and undergrowth appears to him as a major action and results in some ecological damage to the immediate area. However, these local and limited damages are intended to be covered by the monetary award in the condemnation proceedings, and do not represent significant change or damage to the human environment.

F. This Court finds as a fact and concludes as a matter of law that REA originally approved this project without requiring Central to submit information of the environmental aspects of this project, but these court actions resulted in an adequate environmental analysis being prepared and filed; that is analysis and an independent investigation by REA were sufficient to support the action of REA in giving subsequent approval to the project; that the actions of REA were taken after a full, goodfaith consideration of environmental factors and after weighing the costs and economic benefits of the projects against the limited damages that could result therefrom.

IT IS, THEREFORE, ORDERED that the injunctions of this Court dated December 21, 1972 and February 27, 1973 be and the same are hereby dissolved; that the complaints of Oliver W. Mowry and Arthur S. Mowry be and the same are hereby dismissed; and that bonds of the plaintiffs are exonerated and cancelled; and that each party bear his own costs.

AND IT IS SO ORDERED