Port of Astoria v. Hodel

No. 75-349 (D. Or. August 27, 1975)

An electric power sale contract between the Bonneville Power Administration (BPA) and the corporate owner of a proposed aluminum reduction plant is declared unenforceable until an adequate NEPA impact statement is prepared. A municipality which lost its bid to have the plant locate within its boundaries lacks standing to sue under NEPA because its interest in this litigation is solely pecuniary and thus not within the zone of interests protected by the statute. A citizens' association and several individual plaintiffs do have standing, however, since they have alleged that they will suffer environmental injuries should the plant be constructed. The power sale agreement effectively permits the plant to operate, and such direct power sales between BPA and primary industrial users therefore constitute major federal actions which federalize essentially private projects for NEPA purposes. The aluminum plant will have obvious and significant environmental effects in the form of solid waste disposal problems, water consumption requirements, and aesthetic impacts, which must be examined in a NEPA statement. Because defendants acted in good faith in not preparing an EIS before executing the power sale agreement, the court declines to grant the extraordingly remedy of voiding the contract, but retains jurisdiction over the case in anticipation of further controversy concerning the adequacy of the completed impact statement.

Counsel for Plaintiffs
Donald H. Pearlman
Diarmuid F. O'Scannlain
Michael J. Esler
Keane, Haessler, Harper, Pearlman & Copeland
3500 First National Tower
Portland, Ore. 97201

Counsel for Federal Defendant
Sidney I. Lezak U.S. Attorney
Jack G. Collins
Thomas C. Lee Asst. U.S. Attorneys
506 U.S. Courthouse
Portland, Ore. 97207

Counsel for Defendant Alumax Pacific Corp.
James P. Rogers
Barnes H. Ellis
Frank Josselson
Thomas G. P. Guilbert
Davies, Biggs, Strayer, Stoel & Boley
900 S.W. Fifth Ave.
Portland, Ore. 97204

[5 ELR 20657]

Skopil, J.

I. Nature of the Case

On April 18, 1975, the Bonneville Power Administration (BPA) contracted to deliver large quantities of electric power to defendant Alumax Pacific Corporation (Alumax) for Alumax's proposed aluminum reduction plant in Umatilla County, Oregon. Plaintiffs claim that this agreement represents a major federal action significantly affecting the quality of the human environment under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C) (1970). Plaintiffs claim defendant Hodel, as Administrator of BPA, violated NEPA by failing to prepare an environmental impact statement (EIS) prior to executing the Umatilla contract. Plaintiffs seek the voiding of the Umatilla contract, an injunction preventing defendants from performing thereunder, or, alternatively, an order in the nature of mandamus.

I denied plaintiffs' request for a temporary restraining order at a hearing held on April 18, 1975.

II. Jursdiction

Jurisdiction is conferred by 5 U.S.C. §§ 702 and 705 (1970), 28 U.S.C. § 1331 (1970), 28 U.S.C. § 1361 (1970), 28 U.S.C. §§ 2201-2202 (1970), and 28 U.S.C. § 1332 (1970).

III. Background

In 1966 BPA contracted with Northwest Aluminum Co., Inc. to provide electric power for the operation of an aluminum reduction plant which Northwest planned to build on Guemes Island, Washington. Northwest then decided not to build at that site. In 1967 Northwest bought land at Warrenton, Oregon, on which to build the plant. BPA and Northwest amended the power contract to reflect the change in location.

In 1970 Alumax (then called Amax) acquired the Warrenton site from Northwest. The power contract was amended for a sixth time by substituting Alumax for Northwest. The agreement was a twenty-year contract, expiring July 19, 1986. The ninth and final amendment was executed in May, 1973. The Warrenton site was politically and environmentally controversial. The continuing controversy prompted Alumax's decision to move the plant to Umatilla County, Oregon. On April 18, 1975, the Umatilla contract was executed. The proposed plant will cost over $350 million.

The Umatilla contract requires Alumax to use the power provided exclusively for the production of aluminum and other related facilities. The Umatilla contract expires July 20, 1986, unless BPA and one or more of its industrial customers execute renewal contracts. If renewed, the Umatilla contract would expire December 31, 1994. The contract provides that Alumax could receive up to 160,000 kilowatts on its lines through March 31, 1978, and up to 320,000 kilowatts thereafter until the expiration of the contract.

The contract provides for delivery to Umatilla County. The BPA Administrator may terminate the contract if Alumax fails to proceed with "due diligence" to obtain requisite environmental approvals from all "all government agencies having jurisdiction."

BPA power sales contracts devote much of their language to when power delivery may be restricted. The Umatilla contract divides the power available to Alumax into four quartiles. The first quartile is "interruptible power," which the BPA Administrator may restrict at any time. It is essentially power generated at times of full or excess water flow over dams. The other three quartiles are classified "modified firm," providing varying degrees of reserve power for BPA. The second quartile can be restricted if there are either transmission or generation failures. The third quartile is somewhat unique to the Umatilla contract. In order to continue receiving power from the third quartile, Alumax (and presumably other industrial users) must, when the opportunity is presented for financing non-federal reserve power plants, sign guaranteed purchase contracts for the non-federal power in amounts equal to the third quartile. The industrial customers will be partially financing new non-federal generating plants. The fourth quartile is almost "firm" power and can only be briefly interrupted during certain emergencies.

BPA is the principal distributor of electric power in the Pacific Northwest, marketing most of the hydroelectric power generated in the federal Columbia River Power System. BPA distributes to approximately 153 customers, selling about 50 percent of the power consumed in the Pacific Northwest while providing about 80 percent of the high voltage transmission. BPA sells directly to 17 industrial [5 ELR 20658] customers, including Alumax, which accounted for 40 percent of BPA's power sales in the Pacific Northwest in 1974.

The original plaintiffs in this case were the Port of Astoria and Concerned Citizens of Clatsop County. The Port is a municipal Corporation statutorily charged with promoting its commercial interests. Concerned Citizens is a collection of 684 dues-paying members sharing an interest in the Alumax plant. Hermiston Broadcasting Corp. operates a radio station in Umatilla County. The five individual co-plaintiffs variously live, own property, have business interests, and/or spend leisure time in the area of the proposed Umatilla plant site.

IV. Standing

The threshold issue is standing. Plaintiffs base their standing to sue on § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702 (1970), which provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

Article III of the Constitution requires that I decide only actual cases or controversies. A case or controversy becomes justiciable when a party has:

alleged such a 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, as to ensure that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 101. Sierra Club v. Morton, 405 U.S. 727, 732 (1972).

The Supreme Court formulated a two-part test for standing to seek judicial review of federal agency actions. The party must allege that the challenged action has caused them "injury in fact" to an interest "arguably within the zone of interests" to be protected or regulated by the statute which the agency allegedly violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970).

Recently the Supreme Court has emphasized the exacting causal relationship required between the illegal practice and the actual injury suffered or about to be suffered by the complainant. Warth v. Seldin, 43 U.S.L.W. 4906 (U.S. June 25, 1975). Justice Powell wrote at page 4909:

Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.

ORS 30.130 limits the power of municipal corporations such as the Port of Astoria to sue. The statute does not explicitly authorize the type of action brought here. There is a more general grant of power to ports contained in ORS 777.050(4). I need not resolve this conflict because plaintiffs brought this action under § 10 of the APA. The State of Oregon cannot deprive the Port of power to sue in federal court to enforce a federally created right. Metropolitan Paving Company v. International Union of Operating Engineers, 439 F.2d 300 (10th Cir. 1971), cert. denied, 404 U.S. 829 (1971); Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963).

The Port alleges that it has been injured in four ways: (1) loss of a potential tax base, (2) loss of potential revenue, (3) loss of a financial guarantee to purchase a new dock facility, and (4) loss of approximately $250,000 out-of-pocket expenses. I must determine whether these economic interests are arguably within the zone of interests protected by NEPA.

NEPA established a national environmental policy designed to "create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans." Economic factors are a part of NEPA's concerns.

Injuries of a noneconomic nature to widely-shared aesthetic and environmental interests, as well as economic injuries, can amount to an 'injury in fact' sufficient for standing under § 10 [cases omitted]. Appellants here allege injury to both environmental and economic interests which are within the 'zone of interests' to be protected by NEPA. Cady v. Morton, Civil No. 74-1984 (9th Cir. June 19, 1975).

Cady indicates that economic and environmental interests must be linked under the NEPA zone of interest.I find the Port, despite allegations to the contrary, is solely concerned with its pecuniary interest. In this regard I am persuaded by the court's reasoning in Clinton Community Hospital Corp. v. Southern Maryland Medical Center, 374 F. Supp. 450 (D. Md. 1974), aff'd, 510 F.2d 1037 (4th Cir. 1975). The Community Hospitalsued under NEPA essentially to prevent construction of a new medical center in the area. The court found that:

plaintiff's real aim is not to improve the quality of life for this and future generations, but rather to prevent the building of a competitive hospital. . . . While showing a real injury, this status is not within the area protected or regulated by NEPA. Id. at 455.

The Port of Astoria lacks standing to bring this action.

Concerned Citizens of Clatsop County is an unincorporated association operating without bylaws. Members deposed by defendants did not agree on the purposes for bringing this lawsuit. However, it was authorized by the group as a whole. For an unincorporated association to acquire standing,

[t]he association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. Warth v. Seldin, supra at 4912.

I am troubled by the lack of unity and substance in this organization. However, some members of Concerned Citizens live, work, or spend leisure time in Umatilla County. They may suffer environmental injury. They meet the Warth standing test.

Hermiston Broadcasting Corp. alleges that BPA transmission lines and towers carrying power to the Alumax plant will interfere with broadcast signals from its radio station. This danger threatens the "corporate health" of the company in a way that is not threatening to individuals. Therefore the cororation has standing. Cf. Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 507 F.2d 905 (9th Cir. 1974).

Like members of the Concerned Citizens group, the individual co-plaintiffs live, work, and/or spend leisure time in Umatilla County. They allege environmental injuries. They have standing to bring this action.

Plaintiffs also contend that they have standing as consumers of electric power. They contend that their electric supply will be adversely affected by the Umatilla contract. Defendants vigorously deny that the Umatilla contract will have any discernible affect on plaintiffs as consumers of electricity.

Plaintiffs have not demonstrated in the record that the Umatilla contract will actually injure them as consumers. They do not have standing as consumers.

V. Major Federal Action

NEPA requires federal agencies such as BPA to prepare a detailed EIS on each major federal action they take which significantly affects the quality of the human environment. Defendants contend that the Umatilla contract does not represent a major federal action. Therefore BPA does not need to prepare an EIS for that action.

Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), addressed the scope of NEPA. Judge J. Skelly Wright wrote an exhaustive, persuasive opinion concerning the strength and range of the mandate provided by NEPA. Judge Wright highlighted two general considerations which I consider of improtance here:

(1) "The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action." Id. at 1122.

(2) It is the duty of federal courts to "see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureauctacy." Id. at 1111.

I find that it is the Umatilla power contract which makes possible the construction and operation of the Alumax plant at Umatilla County. BPA is the only apparent power source for Alumax. The Umatilla contract represents a major federal action under NEPA and as that language has been construed by the courts.

[5 ELR 20659]

The plant itself is a monumental project. Its cost exceeds $350 million; it will employ approximately 800 persons; it may use as much as 2.7 billion kilowatt hours of electricity annually — an amount equal to that used by the city of Eugene each year.

BPA contends that its contract with Alumax is not federal action because power delivery is one step removed from the environmental effects of the Alumax plant. I do not agree. BPA's delivery of power permits the operation of this plant and federalizes this essentially private project. This type of federal enablement has consistently been held to be subject to NEPA. National Forest Preservation Group v. Butz, 485 F.2d 408 (9th Cir. 1973); Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973); City of Davis v. Coleman, Civil No. 74-1942 (9th Cir. July 30, 1975).

National Forest involved an exchange by the Forest Service of certain government land for that of a private party. Some of the former government land was to be used by a third party for development of the Big Sky Ranch in Montana. The Ninth Circuit held that NEPA encompassed indirect federal action.

We do not 'doubt' that NEPA applies to this massive land exchange. While the federal defendants are not themselves planning to take action 'significantly affecting the quality of the human environment,' 42 U.S.C. § 4332(C), the private defendants plan such action, and the exchange is an act without which such action could not be taken. The land exchange is thus analagous to the licensing of or granting of federal funds to a nonfederal entity to enable it to act. Such federal 'enablement' has consistently been held to be subject to NEPA. Id. at 411-412.

The court in Scientists' Institute held that an AEC technology development program was "major federal action" even though the environmental impacts would not be caused directly by the AEC but rather by utilities making use of the technological developments.

Thus there is 'Federal action' within the meaning of the statute not only when an agency proposes to build a facility itself, but also whenever an agency makes a decision which permits action by other parties which will affect the quality of the environment. . . . Development of the technology is a necessary precondition of construction of any plants. Id. at 1088-1089.

City of Davis involved a proposed freeway interchange designed to stimulate and service future industrial development. In view of the potential effects of such development upon the environment, the Ninth Circuit held that an EIS was required.

Nor does characterization of industrial development as a 'secondary' impact aid the defendants. As the Council on Environmental Quality only recently pointed out, consideration of secondary impacts may often be more important than consideration of primary impacts. . . .

The defendants have also objected that the environmental consequences of development will result from local and private action, not federal action, and that therefore they need not consider the consequences of development in determining whether an EIS is required. They are wrong. It must be remembered that the main purpose of the interchange, and its only credible economic justification, is to provide access to the Kidwell area for future industrial development. The argument that the principal object of a federal project does not result from federal action contains its own refutation. Id. at 19-21.

The federal Council on Environmental Quality (CEQ) agrees with these judicial interpretations. CEQ has promulgated guidelines for the preparation of environmental impact statements which define types of actions covered by the act to include projects "supported in whole or in part through Federal contracts." 40 C.F.R. § 1500.5(a)(2) (1974).

NEPA is indeed strong medicine.¹ BPA distributes relatively cheap federal hydro power which is very attractive to heavy industrial users. Compliance with NEPA will ensure that BPA gives meaningful consideration to environmental factors at all stages of its decision-making process in supplying power to private industry.

BPA claims it does not have the ability to regulate the environmental conduct of its customer utilities and their customers. It is by statute a mere distributor. Yet the Umatilla contract does not obligate BPA to deliver power unless Alumax proves full compliance with environmental regulations and the BPA Administrator's environmental concerns.

I do not hold that every BPA contract requires similar NEPA observance. BPA is a marketing agent gathering power from various sources to sell to public and some private utilities. It may be impractical or impossible to determine the uses by the ultimate consumers.

However, BPA also sells directly to "primary industrial users." These are manufacturing plants dependent on BPA for their operations. They number 17, including Alumax. In 1974 these industrial customers purchased about 22 billion kilowatt hours. BPA's total sales were about 56 billion kilowatt hours. The uses of this power and its environmental effects are readily determined by BPA. Direct sales to large industrial purchasers by BPA cannot be consummated before an EIS is made.

BPA argues that an EIS filed in August, 1974, adequately assesses the environmental impact of direct sale to industrial customers. I do not agree. This "wholesale power" EIS deals primarily with the effect on energy consumption of varying wholesale price rates. It does not adequately consider the environmental effects of the sale of the industrial-grade power, nor could it have considered the recently signed Umatilla contract.

Defendants contend that the Umatilla contract does not represent "major federal action" because that contract requires no new commitment of power resources. The contract merely provides for a change in location of a continuing obligation. A change in the distribution point mayconceivably be minor in BPA's overall marketing picture, but the enabling of indirect effects obviously represents a major shift. The plant will now be built in Umatilla County, not Warrenton, The contract is new, not merely an amended Warrenton contract.

A provision in the Umatilla contract would extend BPA's power obligations until 1994 if other major industrial users sign similar contracts. BPA's Administrator, Hodel, regards such signings as a foregone conclusion. In these proposed contracts Alumax and other industrial users will accept lower grades of power in exchange for extended duration of their contracts. These contracts will enable BPA to cover reserve shortages forecast at the end of this decade without having to breach any industrial user contracts. The Umatilla contract will contribute to BPA's reserve resources. The change in duration and location represents major federal action.

Because I found that the Umatilla contract represents a major federal action under the enablement theory, it is not necessary that I reach plaintiff's other contentions regarding major federal action. However, because the questions raised by these contentions will affect future BPA contracts, I shall state that the Umatilla contract is also rendered major federal action because it is a significant step in the so-called "Phase 2" policy of Pacific Northwest power suppliers and because major transmission lines will be constructed to the Umatilla plant.

The Umatilla contract implements a federal policy which BPA calls "Phase 2 of the Hydro-Thermal Program" (Phase 2).

From 1968 BPA and publicly and privately owned utilities have co-operated under a generalized policy regarding the power supply in the Pacific Northwest. The original joint effort, called Phase 1, intended to cover the Northwest's power needs through the 1980's. However, unanticipated shortages and construction delays required another long-range plan. This plan, Phase 2, expects to meet the Pacific Northwest's power needs beyond 1981. Industrial power contracts of the type signed by Alumax are an integral feature of Phase 2, especially the reserves and financing provided by the third quartile provision.

BPA objects that Phase 2 is not major federal action. BPA contends Phase 2 is merely the continuation of Phase 1 — a viable pre-NEPA policy. BPA argues that Congress has granted BPA unimpeded marketing authority separate from NEPA; that Phase 2 is mere non-obligatory policy with no action required; that BPA plays [5 ELR 20660] only a minor role in Phase 2 with no power to demand cooperation; and finally, that the Umatilla contract plays an undeterminable, minimal role in Phase 2 and does not affect the amount of power available in the future.

BPA's objections lack substance. The industrial contracts — the key feature of Phase 2 — are intended to increase BPA's power reserves by 1981 in an amount equal to that produced by a nuclear generating plant. By manipulating the grades of power, BPA has in effect constructed a future nuclear plant. Admittedly, cancelling the Umatilla contract would not provide BPA with additional power to sell, but it would increase BPA's annual reserves in an amount equal to the power used by Eugene, Oregon. Phase 2 is a strong policy in its own right. It enables BPA to avoid costly breaches of contract as the strain on its wholesale reserves becomes more critical. BPA previously tried to withdraw from the Warrenton contract because of its concern with future reserve shortages.

BPA markets 50 percent of the Pacific Northwest's power. It is physically and practically dominant in Phase 2. By requiring industrial customers to sign contracts with the third quartile provision, BPA ensures the financing of the necessary thermal generating plants for public and private utilities. If Phase 2 is merely a continuation of Phase 1, then the third quartile provision is sufficiently different to require an EIS. Cf. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973).

The Umatilla contract will require BPA to construct substantial, high-voltage transmission facilities. BPA contends this action is not ripe for an EIS because the exact source and destination of the power required by the contract is not yet known. BPA will prepare an EIS before construction only to consider the various alternate routes for the lines. This position was upheld in Murphy v. Morton, Civil No. 3721 (E.D. Wash. Oct. 12, 1973), appeal docketed, No. 74-1328 (9th Cir. Feb. 27, 1974).

BPA ignores the clear, oft-cited holding of Calvert Cliffs', supra, that NEPA requires a federal agency to take ". . . into proper account all possible approaches to a particular projects (including total abandonment of the project)." Id. at 1114. When BPA signs a retail industrial user contract, it must consider the option of building no transmission lines in balancing the environmental costs and benefits of the project.

VI. Significantly Affecting the Environment

The Alumax plant will have obvious, significant environmental impacts on Umatilla County. Under the enablement theory, BPA is responsible for these impacts.

The Alumax plant will have a severe impact on the area's water supply. Umatilla County is not blessed with an abundant water supply, yet the Alumax plant will consume about 645,000 gallons per day. There will be solid waste disposal problems and possible effects on the nearby Columbia River.

Alumax will construct a $350 million plant in a sparsely populated, rural, agricultural area affectionately characterized by BPA as "sand ans sagebrush." The aesthetic impact is obvious. There will also be a massive impact on the general community characteristics which were considered under NEPA is Goose Hollow Foothills League v. Romney, 334 F. Supp. 877 (D. Ore. 1971), and Hanley v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert. denied, 409 U.S. 990 (1972).

BPA argues that various state and local agencies can better consider these environmental impacts. BPA also argues that other state and federal agencies have exclusive control over some of these environmental impacts which it may not usurp.

NEPA requires every federal agency independently to balance all the costs and benefits of its actions.

NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department. The Atomic Energy Commission, for example, had continually asserted, prior to NEPA, that it had no statutory authority to concern itself with the adverse environmental effects of its actions. Now, however, its hands are no longer tied. It is not only permitted, but compelled, to take environmental values into account. Calvert Cliffs', supra at 1112.

The agency with overall responsibility for the federal action may best carry out the environmental study. NEPA imposes non-delegable duties. The primary agency may, however, incorporate into its EIS studies prepared by other agencies. Cf. Life on the Land v. Brinegar, 485 F.2d 460, 467-468 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974).

Plaintiffs also contend that the execution of the Umatilla contract will cause severe impacts upon the quality of the environment in Warrenton and Clatsop County. Plaintiffs argue that BPA's agreement to supply power in Umatilla County effectively frees Alumax from any commitment to build at Warrenton. I do not agree that BPA is responsible for causing Clatsop County to lose beneficial aspects of its environment which it never had.

BPA did not refuse to supply power to the proposed Warrenton plant site. The decision not to build at Warrenton was entirely Alumax's. Federal agencies cannot be held responsible for independent decisions by private parties not to do something.

BPA did fell some trees in Clatsop County on its right-of-way for transmission lines, but this action was covered by an EIS prepared for the transmission line planned for Warrenton.

VII. Ripeness

The defendants argue that the issues in this case are not ripe for judicial consideration because Alumax has not obtained all the necessary state and local permits to build and operate the plant. They suggest the plant may never be built.

Nothing in the record indicates that Alumax is not moving with "due diligence" to secure the necessary permits. Nor does anything in the record indicate that the plant will not be built. The Court of Appeals of this circuit has indicated that an EIS is required at the outset of federal action in a proposed project. Lathan v. Brinegar, supra. Plaintiffs' claims are ripe for judicial determination

VIII. Remedy

Plaintiffs contend that I should declare the Umatilla contract void and reinstate the Warrenton contract. This would be an extraordinary remedy.

Plaintiffs argue that the "Umatilla contract" was substituted for the "Warrenton contract." They note that § 6 of the APA empowers me to "hold unlawful and set aside agency action . . . otherwise not in accordance with law."

I decline to grant such an extraordinary remedy. The record indicates that defendants acted in good faith in not preparing an EIS before signing the Umatilla contract. Another federal court had ruled in their favor in related circumstances. Sierra Club v. Hodel, supra.

I declare the Umatilla contract unenforceable until an acceptable EIS has been prepared, circulated, and filed. I anticipate controversy over the completed EIS. I retain jurisdiction of the proceeding until the EIS shall have become final as provided by law.

This Opinion shall constitute findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a). Counsel for plaintiffs shall submit a form of judgment order.

1. As a philosophical matter, I am deeply disturbed by the pervasive intrusion of the federal government into the private sphere which NEPA exemplifies. It is for Congress, however, and not the courts to determine such questions of national policy.