Sierra Club v. Morton

No. 1182-73 (D.D.C. February 14, 1974)

The court grants summary judgment against plaintiffs seeking to enjoin any further action by the federal government affecting coal development in the Northern Great Plains region pending completion of a region-wide environmental impact statement, systematic interdisciplinary studies, and examination of alternatives under §§ 102(2)(A), (C), and (D) of NEPA. The court rules that there is no existing or proposed regional program or plan of federal action for coal development in the Northern Great Plains. Multiple unrelated applications for federal action regarding coal leases in a multistate area do not constitute such a program, and the Northern Great Plains Resource Program currently being conducted by the Department of the Interior is a study project rather than a program for development. In the absence of such a regional program, a region-wide EIS, interdisciplinary study, and examination of alternatives are not required by NEPA. The court points out that even if there were a regional program, the Act would not prohibit federal action on an individual coal leasing project within the region for which an EIS had been prepared prior to the program's implementation. The court also notes that the Interior Department is already preparing an EIS for the entire federal coal leasing program which will deal extensively with the Northern Great Plains area.

Counsel for Plaintiffs
Bruce J. Terris
Suellen T. Keiner
1908 Sunderland Place, N.W.
Washington, D.C. 20036

Counsel for Federal Defendants
Herbert Tittle
Department of Justice
Washington, D.C. 20530

Counsel for Intervenor-Defendants
Richard T. Conway
Francis H. Shea
Shea & Gardner
734 15th Street, N.W.
Washington, D.C. 20005

Richard Schwartz
1666 K Street, N.W.
Washington, D.C. 20006

[4 ELR 20247]

MEMORANDUM OPINION

In this suit several environmental and public interest organizations sue the Secretaries of the Department of Interior, Department of Agriculture, Department of the Army and other Federal government officials claiming that they have violated the National Environmental [4 ELR 20248] Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). Plaintiffs seek a declaratory judgment, injunctive relief and mandamus and allege that the defendants in viclation of NEPA mandates have permitted and authorized development of coal reserves in the Northern Great Plains region without first preparing a comprehensive environmental impact statement, systematic interdisciplinary studies of coal development and a study of appropriate alternative courses of action. Several coal mining companies, electric power and utility companies and the Crow Tribe of Indians were allowed to intervene.

The matter came on for hearing upon plaintiffs' motion for summary judgment, the cross motions for summary judgment of the Federal defendants and of the intervening defendants, the motion for judgment on the pleadings of the intervening defendants, and the motions for partial summary judgment of intervening defendants Atlantic Richfield Company, Kerr-McGee Corporation, and Westmoreland Resources. Upon consideration of these motions, the affidavits, exhibits, answers to interrogatories and memoranda filed by the parties, and the oral arguments of counsel, the Court hereby enters the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Plaintiffs are the Sierra Club, a nonprofit California corporation; the National Wildlife Federation, a nonprofit District of Columbia corporation; the Northern Plains Resource Council, a no profit unincorporated organization with members in Montana; the Montana League of Conservation Voters, an unincorporated organization with members in Montana; and the League of Women Voters of South Dakota, an unincorporated organization with principal offices in Rapid City, South Dakota. Many members of plaintiff organizations live, work, engage in recreational activities, own land and hold surface rights on or immediately adjacent to the sites of coal mining and related activities in the four-state area, Montana, Wyoming, North Dakota and South Dakota. These plaintiffs sue as organizations and on behalf of their members.

2. The defendants named in the complaint are Rogers C. B. Morton, the Secretary of the Interior; Marvin Franklin, Assistant Secretary for Indian Affairs of the Department of the Interior; Gilbert G. Stamm, Commissioner of the Bureau of Reclamation of the Department of the Interior; Vincent E. McKelvey, Director of the United States Geological Survey of the Department of the Interior; Earl L. Butz, the Secretary of Agriculture; John R. McGuire, Chief of the Forest Service of the Department of Agriculture; Howard H. Callaway, the Secretary of the Army; and F. J. Clarke, Chief of Engineers, United States Army Corps of Engineers. Burton W. Silcock was also named as a defendant as Director of the Bureau of Land Management of the Department of the Interior but the United States has alleged that Curt Burkland is the Director of the Bureau of Land Management.

3. The following parties were allowed to intervene as defendants: Atlantic Richfield Company; Cities Service Gas Company; Westmoreland Resources; Peabody Coal Company; Kerr-McGee Corporation; American Electric Power System; Panhandle Eastern Pipe Line Company; Arkansas Power & Light Company; Oklahoma Gas & Electric Company; Northern Natural Gas Company; Wisconsin Power & Light Company; Patrick J. McDonough; The Crow Tribe of Indians; Montana Power Company; Puget Sound Power & Light Company; Portland General Electric Company; and the Washington Water Power Company.

4. By this suit plaintiffs seek a declaration that NEPA requires

the preparation and consideration of comprehensive environmental-impact statement concerning coal development in the Northern Great Plains region before issuing coal prospecting permits or mining leases, entering into options or contracts for the sale of water or taking any other actions concerning coal development in the Northern Great Plains Region . . . .;

and that NEPA also requires

the carrying out of systematic interdisciplinary studies of the coal development in the Northern Great Plains region and the study of appropriate alternatives to this development.

5. Plaintiffs also seek an injunction against any actions by the Federal Government affecting coal development in the Northern Great Plains region pending the completion of an Environmental Impact Statement for that region and related studies under NEPA Section 102(2)(A), (C), and (D).

6. The complaint asserts that the "Northern Great Plains region involved in this lawsuit includes northeastern Wyoming, eastern Montana, western North Dakota, and western South Dakota."

7. The "Northern Great Plains region" as described by the plaintiffs is not an entity, region, or area which has been defined by the Federal Government by statute or executive action for purposes of any Federal program, project, or action.

8. There is no existing or proposed Federal regional program, plan, project, or other regional "federal action" within the meaning of NEPA Section 102 (2) for the development of coal or other resources in the area defined by the plaintiffs as the "Northern Great Plains region."

9. Pursuant to the authority of the Mineral Leasing Act of 1920, 41 Stat. 437, 30 U.S.C. 181 et seq. as amended, the Department of the Interior, beginning in 1920 issued coal mining leases on Federal lands in Montana covering 33,000 acres. Of those leases, five are presently producing, including the lease issued in 1923.

Beginning in 1922, that Department commenced issuing coal leases covering 16,000 acres of land in North Dakota. Six of those leases, including the lease issued in 1922, are still producing.

Commencing in 1922, the Department of the Interior has issued coal leases covering 118,000 acres of Federal lands in northern Wyoming. Of those leases, only four are presently producing, including the lease issued in 1922.

10. Coal prospecting permits have also been issued for several thousand acres of Federal-owned lands in Montana and Wyoming and in addition, several thousand acres of land in the Crow, Cheyenne, Ft. Berthold, and Wind River Indian Reservations have been leased by the Tribes with the approval of the Bureau of Indian Affairs.

11. At the present time, coal is being produced from only four leases in Montana, six leases in North Dakota, and four leases in northern Wyoming. All producing coal mines are operating under approved mining plans and under state-approved reclamation plans.

12. On May 26, 1970, the Department of the Interior initiated the North Central Power Study. The purpose of that study was to investigate the potential for corrdinated development of electric power supply in the north central United States. The Department of the Interior was aware that private companies have had plans or are developing plans for utilization of coal in the Northern Great Plains and many such development plans involve state or privately owned lands - not lands of the United States.

13. The Phase I report of that Study, which was a broad reconnaissance type study, was issued in October 1971 and utilities were given until July 1, 1972, to comment on the report. The responses received did not indicate that a plan for the corrdinated development could be formulated and the study was terminated at the end of Phase I.

14. The Department of the Interior has taken action to control development of coal on a national basis, including the Northern Great Plains. It has initiated a study of potential water resource projects in southeastern Montana and northeastern Wyoming (the Montana-Wyoming Aqueducts Study). It has established a new national coal leasing policy and has halted the issuance of prospecting permits. It has also established a policy with respect to coal leasing of Indian lands and has instituted the Northern Great Plains Resources Program (NGPRP). Those actions, however, are not part of a plan or program to develop or encourage development but are attempts to control development by individual companies in a manner consistent with the policies and procedures of the National Environmental Policy Act of 1969.

15. The new national coal leasing policy was announced by the Secretary of Interior on February 17, 1973. This policy has both [4 ELR 20249] short-term and long-term aspects. One aspect of the policy is the preparation of an Environmental Impact Statement on the proposed Federal coal leasing in the United States. This statement is referred to as the coal programmatic EIS. The primary objective of the statement is to provide a national overview of the impact of the entire Federal coal leasing program on the quality of the human environment.

16. That statement will not deal with proposed developments of individual companies. It will serve as the foundation and framework for subsequent environmental analyses and supplemental statements which may be prepared for subregions, geological structures or basins, or on an individual basis for coal management actions. Also, the coal programmatic EIS is essential to the development of a planning system to determine the size, timing, and location of future coal leases in order to meet energy needs most effectively.

17. A working draft of the statement has been prepared and is currently undergoing internal review. When it is completed, it will be issued in draft form for general agency and public comment. This will allow public involvement in the analysis and review of the Federal leasing policies and procedures which have an impact upon the environment. It is planned that the final coal programmatic EIS will be issued in early 1974 following consideration of comments and necessary review.

18. Prior to the issuance of the coal programmatic EIS in its final form and the development of the planning system, coal leases will not be issued except pursuant to the short-term coal leasing policy which was announced in the news release of February 17, 1973. That policy dictates that coal leases will be issued only under the following conditions:

a. When coal is needed now to maintain existing mining operations; or

b. When coal is needed as a reserve for production in the near future; and

c. When the land to be mined will in all cases be reclaimed in accordance with lease stipulations that will provide for environmental protection and land reclamation; and

d. When an environmental impact statement covering the proposed lease has been prepared when required under the National Environmental Policy Act.

19. The short-term leasing policy will restrain leasing in the Northern Great Plains region except under the conditions set forth in paragraph 18 and will limit the Department's actions to those for which it has adequate information basis. It is intended to insure that current coal production can continue and to prevent deficiencies in supplies of coal which are necessary to meet continuing energy needs.

20. The information compiled and developed will expand the Department's informational basis upon which decision will be made. The coal programmatic EIS in its present form contains material relative to the Northern Great Plains. The section on the various environments where coal occurs includes an extensive part on the Northern Great Plains region with discussions relating to geology, topography, climate, hydrology, soils, vegetation, wildlife, land use, population patterns, and human value resources in the province. In addition, the section on impacts on the environment from coal leasing contains a part on the impacts unique to the Northern Great Plains region. Other material analzed and developed in the coal programmatic EIS will be valuable in decision-making relative to the Northern Great Plains, such as discussions relating to measures to mitigate environmental impacts, alternative sources of energy, and conservationof energy use.

21. The issuance of coal prospecting permits by the Department of the Interior was halted by Secretarial Order No. 2952 issued February 13, 1973. No prospecting permits will be issued until further notice. The purpose of that order was to allow for the more orderly development of coal resources upon the public lands with proper regard for the protection of the environment in a manner consistent with the National Environmental Policy Act of 1969.

22. In fulfilling its fiduciary responsibilities, the policy of the Department with respect to approval of coal leasing on Indian lands is that approval will be granted where the tribal or individual Indian landowner desired to dispose of the minerals, where the terms and conditions of the lease are in the best interest of the Indian landowners, where appropriate environmental safeguards are imposed on the lessee and where the requirements of National Environmental Policy Act have been satisfied.

23. The NGPRP study was initiated by the Secretary of Interior in an inter departmental memorandum of June 30, 1972 and later announced in a press release of October 3, 1972. The study is to provide a tool for planning at all levels of government rather than to develop an actual plan. The study is being conducted by an interagency Federal-State Task Force with public participation. Its analyses are to be based on assumptions of various possible levels of resource development in order to provide an informational framework for informed decision-making and planning. The study will consist of a series of investigations and studies conducted by work groups in seven principal areas of concern; regional geology; mineral resources; water (supply and quality); air quality; surface resources; social, economic, and cultural aspects; and national energy consideration. The results of these investigations will be integrated into the development of scenarios for predicting the environmental and social consequences of various possible developments.

24. The NGPRP is financed and staffed and the study is underway. The work groups are in the field, public meetings have been held in the Northern Great Plains areas. The work groups are to complete their preliminary reports in the spring of 1974 and an overall interim report is to be prepared by June 1974. After review of the report, decisions will be made concerning the necessity of further study in specific areas.

25. The purpose of the Department of Interior policy with respect to resource development in the Northern Great Plains areas is to insure that development does not proceed based solely on single purpose studies incapable of developing comprehensive information or by piecemeal actions which restrict future options. To fulfill that purpose the granting or approval of leases, special use permits and all types of rights-of-way across public lands, the delivery and sale of water and approval of mining plans relating to coal development in the Northern Great Plains areas will be held in abeyance pending the availability and analysis of the interim report from the NGPRP study or submitted to the Under Secretary of Interior for review and concurrence prior to exection.

26. With respect to the Montana-Wyoming Aqueducts Study, the decision was made in the fall of 1972, not to seek funding for fiscal 1974 and no funding will be sought for fiscal 1975. That study and other proposals such as the Morehead Dam will be held in abeyance pending the results of the NGPRP study.

27. After completion of the coal programmatic EIS in early 1974, decisions will be made concerning supplemental statements necessary for coal management actions. It is possible a decision will be made to prepare a statement for the entire Northern Great Plains region, but the information available may indicate that statements on smaller subregions, geologic structures, basin, or selected individual actions will fulfill the policy and procedural requirements of the National Environmental Policy Act in a more satisfactory manner. Until those decisions are reached, no new coal leases will be issued except pursuant to the short-term leasing policy. The interim report from the NGPRP will be available in the summer of 1974 and will provide an informational foundation for decision-making and planning. This information will be utilized in decision-making for all coal related actions in the Northern Great Plains areas and will form a useful reference source for preparing environmental analyses and statements on proposed actions or groups of actions in the Northern Great Plains area. Until the interim report is available, decisions relating to coal development in the Northern Great Plains will be held in abeyance or submitted to the Under Secretary for review and concurrence.

28. Neither the Department of Agriculture which has jurisdiction over issuance of permits for rights-of-way over lands within national forests nor the Corps of Engineers which has jurisdiction over navigable rivers has pending before either any applications for any permits or rights-of-way within their authority to grant. Nor does either agency intend to consider such applications prior to June 30, 1974.

[4 ELR 20250]

29. There is no existing or planned Federal program or action in the area defined by the plaintiffs as the "Northern Great Plains region" to which appropriations of funds have been allocated for implementation of proposals, or for which there is a schedule for the implementation of proposals, or as to which the Federal Government has made commitments to take further steps to carry out proposals.

30. There is no evidence of record in this case that in the area defined by the plaintiffs as the "Northern Great Plains region" that Federal action has been taken or is threatened to be taken on individual projects for the development of coal or other resources without compliance with the requirements imposed by NEPA and by applicable state laws relating to environmental consideration.

31. There is no evidence of record in this case that individual projects by private industry for the development of coal and other resources in the area defined by the plaintiffs as the "Northern Great Plains region" are being planned or constructed as part of any integrated plan or program for any such area, or that any such individual projects are interrelated or integrated with other like projects in such area.

32. There is no evidence in the record of this case that irreparable harm would result to plaintiffs if an injunction were not granted as prayed or that the balance of equities favors the granting of such an injunction.

33. The record in this case establishes that large sums have been invested in good faith by the intervening defendants and others in connection with and in reliance upon individual existing and proposed projects in the "Northern Great Plains region" referred to in the complaint for the development of coal and other resources and for the use of such coal for the generation ofelectricity and production of synthetic natural gas; and that if an injunction as requested by the plaintiffs were to issue, irreparable harm would result to the intervening defendants, who have submitted affidavits describing their commitments and potential losses, and to the public at large.

CONCLUSIONS OF LAW

1. The jurisdiction of the Court over the subject matter of this action is founded upon 28 U.S.C. § 1331(a).

2. Rule 56(c) of the Federal Rules of Civil Procedure requires that in order for a summary judgment to be entered in this case on the motion of any party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 787-788 (D.C. Cir. 1971); Fed.R.Civ.P. 56(c).

3. Section 102(2) of NEPA, 42 U.S.C. § 4332(2), requires "all agencies of the Federal Government" to

(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 decision-making which may have an impact on man's environment;

(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 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.

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

4. NEPA Section 102(2)(C) requires an environmental impact statement before "major Federal actions" are taken with respect to an individual Federal project. Multiple applications for Federal action in connection with individual private projects which are unrelated to each other, except that they involve resource development at some point within a multistate area, do not constitute a private or Federal regional plan or program for development, nor do they require the Federal Government to develop a regional plan or program for development with respect to such multiple applications. Questions relating to the scope of an environmental impact statement prepared for each individual application are to be decided initially by the Federal agency or agencies involved at the time action is taken upon such application. Scientists' Institute for Pub. Info. v. AEC, 481 F.2d 1079, 1091 (D.C. Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Natural Resources Defense Council v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972).

5. The requirement in NEPA Section 102(2)(A) that Federal agencies utilizea "systematic, interdisciplinary approach . . . in planning and decision making which may have an impact on man's environment" by its own terms does not require that such an approach be on a region-wide basis where, as in this case, the "planning and decisionmaking" is not on a region-wide basis. Similarly, the requirement in NEPA Section 102(2)(D) that Federal agencies "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources" by its own terms does not necessitate that the "appropriate alternatives" to be studied, developed, and described be on a region-wide basis where, as in this case, the "recommended course of action" is not on a region-wide basis. See Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 1403 (D.D.C. 1971). Federal approval of individual projects or applications, including preparation of environmental impact statements relating thereto, need not await completion of "regional" studies not oriented to the particular project or application. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280-1281 (9th Cir. 1973).

6. Since there is no existing or proposed regional program or project or other regional "federal action" within the meaning of NEPA Section 102(2) for the development of coal or other resources in the "Northern Great Plains region," the complaint does not set forth a claim upon which relief can be granted.

7. Questions relating to the scope and validity of studies and environmental impact statements in connection with proposed Federal actions under NEPA Sections 102(2)(A), (C) and (D) are to be decided by the Federal agency responsible for the proposed action with respect to an individual project, and the courts will not review the validity of supporting statements or studies until final Federal actions taken under NEPA Section 102(2) and until after final agency action has been taken with respect to the individual project. Scientists' Institute for Pub. Info. v. AEC, 481 F.2d 1079, 1091 (D.C. Cir. 1973); Natural Resources Defense Council v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972); Coalition for Safe Nuclear Power v. AEC, 463 F.2d 954, 955 (D.C. Cir. 1972); Thermal Ecology Must Be Preserved v. AEC, 433 F.2d 524, 526 (D.C. Cir. 1970); Gage v. Commonwealth Edison Co., 356 F. Supp. 80, 86 (N.D. Ill. 1972); Sherry v. Algonquin Gas, 3 ELR 20227, 20228 (D.Mass. 1972).

8. For the reasons set forth in Conclusion of Law No. 7 the complaint does not present a justiciable case or controversy with respect to proposed or future Federal action. Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 434 (1948); Ashwander v. TVA, 297 U.S. 288, 324 (1936); Committee to Stop Route 7 v. Volpe, 2 ELR 20610, 20612 (D.Conn. 1972).

9. The Northern Great Plains Resource Program now being conducted under the auspices of the Department of the Interior is a study project and not a program for development, and it does not constitute "major Federal action" within the meaning of NEPA Section 102(2)(C). There has been no showing in this case that the Northern Great Plains Resources Program "has life" as a federal regional program for development of coal and other resources or is accompanied by either a schedule for implementation of concrete [4 ELR 20251] proposals, commitments that steps toward implementation will be taken, or specific annual appropriations for its work. Scientists' Institute for Pub. Info. v. AEC, 481 F.2d 1079, 1082-1084, 1087, 1095-1098 (D.C. Cir. 1973).

10. Even if there were some regional Federal program for the development of coal and other resources in the "Northern Great Plains region," NEPA would not prohibit Federal action upon an individual project with the "region" on the basis of an environmental impact statement prepared for that project prior to completion of the regional program. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Indian Lookout Alliance v. Volpe, 3 ELR 20739, 20743 (8th Cir. 1973); Environmental Defense Fund, Inc. v. Armstrong, 356 F. Supp. 131 (N.D. Cal. 1973); Movement Against Destruction v. Volpe, 3 ELR 20667 (D.Md. 1973).

11. Even if the complaint stated a claim upon which relief could be granted, plaintiffs would not be entitled to an injunction against any actions by the Federal Government affecting coal development in the Northern Great Plains region because there has been no showing in this case that irreparable harm would result in the absence of such an injunction or that the balance of equities favors the granting of such an injunction; and because the record discloses that such an injunction would cause irreparable injury to the defendants and to the public at large. Aberdeen & Rockfish R.R. v. SCRAP, 409 U.S. 1207, 1218 (1972); Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033, 1036, 1037 (8th Cir. 1973); Sierra Club v. Hickel, 433 F.2d 23, 33 (9th Cir. 1970).

12.On the basis of the foregoing findings of fact and conclusions of law, the motion for summary judgment filed by the Federal defendants and the motions for summary judgment and for judgment on the pleadings filed by the intervening defendants should be granted; and the motion for summary judgment filed by the plaintiffs should be denied.