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7 ELR 20555 | Environmental Law Reporter | copyright © 1977 | All rights reserved City of Willcox v. Federal Power CommissionNos. 74-2123; 75-1052 (D.C. Cir. June 30, 1977)The court decides, inter alia, that the applicability as an interim measure of a proposed permanent curtailment plan for natural gas deliveries need not be stayed pending completion of an environmental impact statement. The court cautions, however, that this forbearance is based on the expectation that the Federal Power Commission (FPC) will develop a complete environmental record and consider all relevant alternatives as though no interim plan were in effect and on the understanding that the administrative law judge will have broad authority to revise the plan in light of environmental considerations. This approach, in the court's view, is more practicable and less disruptive than remanding the proposed plan in its entirety for reconsideration of environmental factors while reinstating the previous interim curtailment order. This resolution of the isue reconciles the FPC's duty under the Natural Gas Act "to take effective interim curtailment action in the exigencies presented by gas shortages" and the National Environmental Policy Act's mandate that environmental considerations be taken into account to the fullest extent possible. Counsel for Petitioners Counsel for Respondent Counsel for Intervenor Salt River Project Joined by Tamm, J.; Bazelon, C.J., concurs in part and dissents in part. MacKinnon, J.: [Excerpt from opinion of the court, at 38.] VI. ENVIRONMENTAL IMPACT STATEMENT A problem is raised by the intervenor Salt River Project Agricultural Improvement and Power District concerning the compliance of Order No. 697 with the National [7 ELR 20556] Environmental Policy Act of 1969. Under that Act, all federal agencies are required, "to the fullest extent possible," to 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 . . . the environmental impact of the proposed action . . . . 42 U.S.C. § 4332 (1970). The proposed permanent curtailment plan has been issued without any environmental impact statement. Although the Commission at one time maintained that curtailment plans were, because of their contingent nature, exempt from the requirement of filing an environmental impact statement, it now recognizes that the court's ASARCO opinion, and that of the Fifth Circuit in Louisiana v. FPC, 503 F.2d 844 (5th Cir. 1974), have ruled unacceptable that manner of procedure. Accordingly, in Opinion No. 697A, the Commission reluctantly concludes: We are therefore constrained to remand this proceeding for the limited purpose of preparation and circulation of an environmental impact statement in accordance with Section 102(2)(c) of NEPA. This step is taken in spite of our belief that the impact statement so developed will add little of substance to the environmental record already developed in this proceeding. This left the question of what force the Commission wished to attach to Opinion No. 697 before the environmental impact statement issues. Finding that immediate implementation of the plan was necessary, the Commission decided that Order No. 697 (and 697A) "should therefore be considered as a revised interim plan until such time as the Commission rules on its appropriateness as a permanent plan for the El Paso system." (J.A. 509-510; Tr. 17105-17106). The Administrative Law Judge to whom the opinion was remanded was given authority "to modify the plan as may be required by the environmental evidence" adduced at this hearing (Id.) The fact that this plan is officially an interim one does not oust the jurisdiction of this court. See ASARCO, supra; Louisiana, supra. They are nonetheless final FPC actions. And if the changes made on the basis of the environmental hearings are as minor as the FPC expects, any review of the permanent curtailment plan can be considerably abbreviated by reason of the opinion in this case (except, of course, for challenges to the adequacy of the environmental impact statement). It is Salt River's contention, however, that the issuance of Opinion No. 697 should be held up, even as an interim plan, until the environmental impact statement is provided. The effect would be the continued applicability of the original interim plan, a matter of no small monetary consequence even if the environmental statement were furnished within a few months. A related question is whether it is consistent with NEPA to treat an environmental impact statement in the begrudging manner that admittedly characterizes the FPC's action in this case. More specifically, is there an obligation to consider environmental consequences as a major federal action is being planned, or is it sufficient to proceed with the development of the program, announce it, and only then turn to a consideration of the environmental consequences? The second question can be disposed of as not yet ripe for adjudication. The adequacy of the environmental impact statement can only be judged once that document has actually been produced. The Commission's remand to the administrative law judge affords him a wide baliwick for his authority to consider environmental effects, and this court cannot say that no amount of post-hoc consideration, study, and alteration of the curtailment plan could ever satisfy NEPA's requirements. However, it is well to repeat the warning this court issued in ASARCO, that "our ruling today is not a license for permanent or prolonged evasion of responsibilities under NEPA." ASARCO, supra, 161 U.S. App. D.C. at 30, n.47, 494 F.2d at 949, n.47. In Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 408, 481 F.2d 1079, 1092 (1975), we stressed that the purpose of an environmental impact statement is to provide information "before the action is taken" so that alternatives can be considered (emphasis added). Cf. Kleppe v. Sierra Club, 427 U.S. 390 (1976). Similarly, in Louisiana, the Fifth Circuit, while recognizing that speculation was unavoidable, interpreted NEPA as requiring that the "FPC, in formulating that plan, take into consideration as best it can the plan's probable effect on the environment." Louisiana at 876 (emphasis added). Those two curtailment plan decisions recognized that the environmental impact statement, to be useful in the way intended by the statute, must be issued as part of the formulative process of the plan, rather than serve merely as a post-hoc catalogue of the environmental results of a complex plan developed without reference to those impacts. Reliance on an interim curtailment plan, and particularly one which the FPC states will in all likelihood become the permanent plan, could well develop. Once it does, the tardy issuance of an environmental impact statement would unduly influence the balance of considerations against change, even when necessary to avoid serious environmental consequences. Calvert Cliffs' Coordinating Committee Inc. v. United States Atomic Energy Commission, 146 U.S. App. D.C. 33, 449 F.2d 1109 (1971). To all this we add a qualifying note. Any reasonable person will recognize that a meaningful and final EIS cannot be prepared on all aspects of any plan until the full details of that plan are known. However, the mandate of the statute requires environmental consequences to be considered throughout the formulation of the plans to the fullest extent possible. Some situations call for an interim EIS. The requirements of NEPA to any situation can be resolved by a common sense application of these principles.13 Hence, while we refrain from staying the applicability of the interim plan until the environmental impact statement has issued, we do caution that this forbearance is premised on the expectation that the Commission will develop a complete environmental record, considering all relevant alternatives as fully as though no interim curtailment plan had intervened. Expectancy interests can be kept at a minimum by the understanding that since the Administrative Law Judge under the statute will have this broad authority to revise the plan, reliance on the interim plan will not necessarily control his decision. The issue still remains, however, of whether it was permissible to by-pass an environmental impact statement even construing Order No. 697 as an interim plan. The language of the National Environmental Policy Act in its terms would require such a statement even for an interim curtailment order. But the Natural Gas Act requires the Commission "to take effective interim curtailment action in the exigencies presented by gas shortages," Atlantic Gas Light Company v. FPC, 476 F.2d 142, 150 (5th Cir. 1973), and this obligation has been held, in other circumstances, to override the NEPA filing requirement. Calvert Cliffs' announced that only such a "statutory conflict" could constitute an impossibility sufficient to overcome NEPA's requirement of compliance "to the fullest extent possible."14 In ASARCO, the impending 1972-1973 heating season created the need for an immediate curtailment plan, without the delay involved in the preparation of an environmental impact statement. ASARCO, supra, at 948. In Atlantic Gas, supra, the court was less specific as to immediacy, finding that "A detailed evaluation of the environmental impact of a curtailment order would entail precisely the sort of delay which the Supreme Court noted and disapproved in the course of a decision which held that the Natural Gas Act authorizes the Commission to follow summary procedures in exercising its curtailment power. Louisiana Power & Light Co. v. Federal Power Commission." 476 F.2d at 150. Salt River asserts that no case for immediate need has been made out in the present setting. The Commission responds that there is ample evidence sustaining the changes made in Order No. 697, and that it would be contrary to its obligation to the public to postpone implementing a preferable curtailment plan. No attempt to argue exigent circumstances is made by the Commission. If we were to accept the Fifth Circuit's view, of course, exigent circumstances would not be required to uphold the FPC's right to implement its new curtailment order. The choice is between (1) ordering the reinstatement of the previous interim curtailment plan under Order No. 634, while remanding Order No. 697 in its entirety [7 ELR 20558] for reconsideration of environmental factors and the ultimate issuance of a permanent curtailment plan and environmental impact statement; and (2) approving the continued applicability of Order No. 697 (subject to the specific objections sustained elsewhere in this opinion) with the understanding that the Administrative Law Judge will have broad revision power to incorporate changes called for by environmental considerations. As a matter of common sense, the latter is the less disruptive course. It should also vindicate NEPA's concern that major federal agency action be undertaken only when fully informed of environmental consequences. The Supreme Court, in an opinion subsequent to ASARCO and Atlantic Gas, has shed light on the practical approach that should be taken regarding the filing of environmental impact statements. In Aberdeen & Rockfish Railroad Company v. SCRAP, 422 U.S. 289 (1975), the Court was presented with a request for an environmental impact statement in connection with proposed surcharges and general rate increases approved by the ICC. The Court held that a statement was not required until ICC approval of the railroads' proposals had actually been issued. "[T]he time at which the agency must prepare the final 'statement' is the time at which it makes a recommendation or report on a proposal for federal action." Id. at 320. Cf. Kleppe v. Sierra Club, 427 U.S. 390, 402 (1976). Still, it might be contended (and Salt River does so argue) that Opinion No. 697 was exactly what the Supreme Court had in mind as the type of agency recommendation on proposed federal action that would require an environmental impact statement. It is all the more instructive, therefore, to observe that the Court went on to say that, if "the ICC erred in failing to prepare a separate formal environmental impact statement to accompany its October 4, 1972, report or that the consideration given to environmental factors in that report was inadequate, the ICC need not have 'started over again.'" Id. at 321 (emphasis in original).Rather, a later consideration of environmental factors by the Commission before issuing its final order of approval would adequately accomplish NEPA's purpose. Id. at 322. The Supreme Court in Aberdeen had before it a record demonstrating that full attention was eventually paid to environmental considerations; whereas in the present case, the FPC has not yet made such a record. But that difference is not determinative. What is important is the approach taken by the Court in reconciling two potentially conflicting Congressional mandates — (1) that an agency not postpone those urgent decisions which its special qualifications require it to make in the public interest, and (2) that environmental considerations be taken account of to the fullest extent possible. Because of the breadth of scope and extent of permissible revision allotted to the Administrative Law Judge by the FPC on remand from that Commission, which we here sustain and emphasize, we believe the better course is to follow the example set in Aberdeen. The issuance of Order No. 697 (as modified by 697A) should not be held up pending an environmental impact statement. The full text of this opinion is available from ELR (61 pp., $7.60, ELR Order No. C-1126.) 13. 42 U.S.C. § 4332 (Supp. V, 1975) provides: The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (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 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. 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 views 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) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if: (i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts prepares a written assessment of such impacts and views for incorporation into such detailed statement. The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction. (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; (F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment; (G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (I) assist the Council on Environmental Quality established by subchapter II of this chapter. 14. See also Concerned About Trident v. Rumsfeld, __ U.S. App. D.C. __, __; __ F.2d __, __; No. 75-1515 (D.C. Cir. Oct. 13, 1976) at 10. 7 ELR 20555 | Environmental Law Reporter | copyright © 1977 | All rights reserved |