8 ELR 20676 | Environmental Law Reporter | copyright © 1978 | All rights reserved
Kelley v. ButzNo. M-74-87-CA (W.D. Mich. April 19, 1977)
The court vacates a preliminary injunction after finding reasonable the Forest Service's decision not to prepare an environmental impact statement (EIS) for a herbicide spray program. In a suit brought by the Michigan Attorney General to block use of the herbicide 2,4,5-T on 73 acres in the Ottawa National Forest, the court preliminarily enjoined the Forest Service because it failed to comply with the National Environmental Policy Act (NEPA) in considering the environmental impact of the spraying program. Subsequently, the Forest Service prepared a detailed environmental assessment and concluded that a full EIS was not required. The court finds that the environmental analysis gives sufficient consideration to alleged adverse environmental impacts and constitutes an adequate administrative record for purposes of judicial review. Second, applying a standard of "reasonableness" in reviewing the agency decision, the court upholds the Forest Service's determination that the spraying program was not a major federal action significantly affecting the environment and requiring preparation of an EIS.
Counsel for Plaintiff
Frank J. Kelley, Attorney General; Stewart H. Freeman, Charles Alpert, Robert N. Rosenberg, S. David Kutinsky, Ass't Attorneys General
Environmental Protection and Natural Resources Division
Law Bldg., Suite 630, 525 W. Ottawa, Lansing MI 48913
Counsel for Defendants
Frank Spies, U.S. Attorney
544 Federal Bldg. and U.S. Courthouse, 110 Michigan Ave. NW, Grand Rapids MI 49503
[8 ELR 20676]
This controversy arises out of a Forest Service plan to spray approximately 73 acres1 in the Ottawa National Forest in Michigan's Upper Peninsula with a herbicide mixture of 2,4-D and 2,4,5-T.2 The purpose of this project is to release red pines eventually destined for commercial harvest. The herbicides are designed to destroy aspen, birch, maple, and other hardwoods, deemed of lesser timber value in order to allow the planted red pine full and complete access to nutrients, water, and light, enabling them to become the dominant species on the sprayed tracts.The Forest Service estimates that each year the pine seedlings remain unreleased, there will be about 10 percent mortality rate. In addition, failure to release the pine will ultimately result in death of all the seedlings.3
Controversy was generated with regard to the Forest Service's choice of the herbicide 2,4,5-T, which was used as a defoliant, in much larger doses, in the Vietnam War. Laboratory studies of 2,4,5-T have isolated a contaminant, dichloro-dibenzop-dioxin,4 described as "the most toxic chemical known to mankind today."5 Experimentation has disclosed that certain levels of dioxin, which could conceivably be encountered in the environment, cause birth defects in chicken embryos6 and fetal abnormalities inmice and rats.7
The Attorney General of the State of Michigan brought suit on behalf of the people of Michigan seeking an injunction restraining the Forest Service from undertaking the spraying project. This court granted a temporary restraining order, and after a hearing, a preliminary injunction was issued. The court concluded that the Forest Service had failed thoroughly to consider the specific impacts of the spraying on the areas involved, contrary to the requirements of the National Environmental Policy Act (NEPA). Kelley v. Butz, 404 F. Supp. 925, 935 (W.D. Mich. 1975). As a result, the court enjoined the spraying "until such time as environmental analysis for this project complies with the requirements of the National Environmental Policy Act of 1969." Id. at 942. The Forest Service has conducted a more intensive study of the probable environmental effects of the proposed spraying and has submitted a detailed environmental analysis which concludes that preparation of an environmental impact statement is unnecessary. (See Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction.) The government contends that NEPA has now been complied with and that the injunction should therefore be vacated.
I. The National Environmental Policy Act
Passage of the National Environmental Policy Act of 1969 was prompted by congressional concern with "the profound impact of man's activity on the interrelations of all components of the natural environment." 42 U.S.C. § 4331(a). NEPA is designed to require federal agencies to submit their projects and proposals to close and careful scrutiny to determine what, if any, adverse environmental impacts are likely, and in what manner these impacts may be avoided or alleviated. 42 U.S.C. § 4332; cf. Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1174 [2 ELR 20726] (6th Cir. 1972). If the projects are [8 ELR 20677] determined to be "major Federal actions significantly affecting the quality of the human environment," environmental impact statements (EIS) must be prepared. 42 U.S.C. § 4332(2)(C). The environmental impact statement consists of a detailed statement of:
(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 commitment of resources which would be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C).
Council for Environmental Quality (CEQ) regulations provide that the agency must assess this same broad range of impacts in determining whether an environmental impact statement need be prepared.40 C.F.R. § 1500.6(b). Similarly, the Forest Service Manual (FSM) provides that the environmental analysis, the study prepared to determine whether an impact statement is necessary, should cover "the same areas of environmental impact as would be covered in an environmental statement." FSM 8411.43, 39 Fed. Reg. 38224 (1974). The Forest Service Manual requires a thorough and searching consideration of these factors in the environmental analysis. FSM 8311, 39 Fed. Reg. 38224 (1974).
In granting the preliminary injunction, the court found that the environmental analysis submitted by the Forest Service failed to deal directly with objections to the spraying and their resolution, and did not fully consider alternatives to the project or how these alternatives might obviate public objection.8 Kelley v. Butz, 404 F. Supp. 925, 934-35 (W.D. Mich. 1975). Applying the Administrative Procedure Act, the court found that the Forest Service's action was "without observance of procedure required by law." 5 U.S.C. § 706(2)(D). Disposition of defendant's motion to vacate the preliminary injunction requires determination whether the Forest Service has given adequate consideration to the potential impacts of the proposed projects, and whether the decision that no impact statement need be prepared is appropriate.
II. Scope of the National Environmental Policy Act NEPA's requirement for preparation of an impact statement extends only to "major Federal actions significantly affecting the quality of the human environment." It is evident that not all governmental actions are to be subjected to the intensive assessment necessitated by the environmental impact statement. Congress intended to exclude from consideration certain "minor" governmental actions without prospect for "significant impact" on the environment. Cf. Julis v. City of Cedar Rapids, 349 F. Supp. 88, 89 [3 ELR 20033] (N.D. Iowa 1972). In determining whether a particular governmental proposal constitutes a "major Federal action significantly affecting the human environment," courts must proceed without significant guidance from Congress. The language of NEPA has been characterized as "opaque" and "woefully ambiguous." City of New York v. United States, 337 F. Supp. 150, 159 [2 ELR 20275] (E.D.N.Y. 1972); Voight, The National Environmental Policy Act and the Independent Regulatory Agency, 5 NAT. RESOURCES LAW. 13 (1972).
In lieu of express direction from Congress, the most appropriate interpretation of NEPA is that consonant with the purposes of the Act. The declared policy of Congress is:
to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony. . . .
42 U.S.C. § 4331(a). Congress manifested a profound concern for the damage to the environment, often of unknown dimensions, resulting from undirected uses of modern technology.9 Although major consideration was given to the impact of technological advances on the environment, it is clear that Congress envisioned a measured balancing approach to the problem of deteriorating environmental quality. Among the goals of NEPA is to:
improve and coordinate Federal plans, functions, programs and resources to . . . attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.
42 U.S.C. § 4331(b)(3).
Congress intended not to preserve the environment inviolate but to encourage beneficial utilization of the environment insofar as use of the environment is consistent with environmental preservation.
Recognizing the diverse goals of NEPA, courts have interpreted the phrase "major Federal project significantly affecting the quality of the human environment" in different ways. The controversy centers around whether consideration of the magnitude of the federal action should be separated from its impact. In Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1321 [4 ELR 20700] (8th Cir. 1974), the court stated that separate consideration of magnitude of an impact does not further the "widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable and unintended consequences." The court noted that if the statutory language were bifurcated, it would be possible to speak of a minor federal action significantly affecting the quality of the human environment, which would not require preparation of an impact statement. The court declared that such a result was contrary to the intent of NEPA that if an action posed a significant impact, it should be subjected to more detailed consideration. 498 F.2d at 1322. The court also noted the comments in S. REP. NO. 91-296, 91st Cong., 1st Sess., stating that if the project is considered to have a significant effect on the environment, an environmental impact statement must be prepared. Id. at 1319. The court relied in addition on the then proposed CEQ regulations, which have since become final:
The statutory clause "major Federal actions significantly affecting the quality of the human environment" is to be construed with a view to the overall, cumulative impact of the action proposed. . . .
40 C.F.R. § 1500.6 (1976). Other courts have also interpreted the phrase "major Federal action significantly affecting the quality of the human environment" to call only for an assessment of the impact of a proposed project rather than for additional consideration of its magnitude. See, e.g., City of Rochester v. United States Post Office, 541 F.2d 967 [6 ELR 20723] (2d Cir. 1976) ("substantial environmental degradation"); City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975) ("questions are raised as to whether a project will have significant adverse impacts"); Save Our Ten Acres v. Kreger, 472 F.2d 407 [3 ELR 20041] (5th Cir. 1973) ("may cause a significant degradation of some human environmental factor"); Morgan v. United States [8 ELR 20678] Postal Service, 405 F. Supp. 413 (W.D. Mo. 1975) ("any action which could have a significant impact on the environment"); Paterson v. Exon, 415 F. Supp. 1276 [6 ELR 20743] (D. Neb. 1976); Jones v. Department of Housing and Urban Development, 68 F.R.D. 60 (E.D. La. 1975) ("any single human environmental factor would be adversely affected"). The Sixth Circuit has apparently assumed this position, stating:
an agency must file an impact statement whenever the agency intends to take steps that will result in a significant environmental impact.
Environmental Defense Fund v. TVA, 468 F.2d 1164 [2 ELR 20726] (6th Cir. 1972) (McCree, J.).
Other courts, however, have considered the factors as discrete criteria. See, e.g., Township of Ridley v. Blanchette, 421 F. Supp. 435 [7 ELR 20184] (E.D. Pa. 1976); Julis v. City of Cedar Rapids, 349 F. Supp. 88 [3 ELR 20033] (N.D. Iowa 1972). Moreover, the Council on Environmental Quality apparently conceives the magnitude and the impact of the federal project to be separate factors for consideration. CEQ regulations provide that to warrant an impact statement an action must be:
(1) a "major" action, (2) which is a "Federal action," (3) which has a "significant" effect, and (4) which involves the "quality of the human environment." The words "major" and "significantly" are intended to imply thresholds of importance and impact that must be met before a statement is required.
40 C.F.R. § 1500.6(c) (1976). Ordinarily, the interpretation afforded a statute by an agency charged with its administration is entitled to great weight, see, e.g., NLRB v. Hearst Publications, 322 U.S. 111 (1944). Nevertheless, the court concludes that in the present case, the result would not vary under either approach.
The CEQ regulations also provide that where the impact of a proposed major action "is likely to be highly controversial," an impact statement should be prepared. 40 C.F.R. § 1500.6(a) (1976). This requirement is included in the Forest Service Manual, which states:
Proposed major Federal actions the environmental impact of which is likely to be highly controversial, should be covered by an environmental statement.
FSM 8411, 39 Fed. Reg. 38249 (1974). The CEQ and Forest Service regulations focus on controversy concerning the environmental impact of a proposed project and not merely on public opposition and controversy in general. The court in Hanly v. Kleindienst, 471 F.2d 823, 830 [2 ELR 20717] (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973), (Hanly II) limited "controversial" to "cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use, the effect of which is relatively undisputed." Accord, Rucker v. Willis, 484 F.2d 158 [3 ELR 20912] (4th Cir. 1973); cf. Citizens for Reid State Park v. Laird, 336 F. Supp. 783 [2 ELR 20122] (D. Md. 1972). But see Kisner v. Butz, 350 F. Supp. 310 [2 ELR 20709] (N.D. W. Va. 1972). Mere opposition to a particular project, where the probable impacts are not in serious dispute, is insufficient to mandate the preparation of an environmental impact statement.
III. Scope of Review
The court is in this case confronted with the task of reviewing an administrative determination that an impact statement was unnecessary. The circuits have split over the appropriate standard, and a definitive interpretation awaits Supreme Court action. This split is attributable to the nature of the administrative decision under judicial scrutiny. The Administrative Procedure Act states the standards usually applied:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be —
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to section 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5 U.S.C. § 706.
Certain courts have applied the arbitrary and capricious standard of § 706(2)(A) to the agency determination that an impact statement was unnecessary. See, e.g., Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 [5 ELR 20698] (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976); Hanly v. Kleindienst, 471 F.2d 823 [2 ELR 20717] (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973). The Hanly court noted that under the Administrative Procedure Act, its function was to determine de novo all relevant questions of law and to determine whether the agency's findings of fact were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 471 F.2d at 828. The court recognized an alternative "rational basis" or "reasonableness" test applied to mixed questions of law and fact. 471 F.2d at 829. See NLRB v. Hearst Publications, 322 U.S. 111 (1944); Rochester Telephone Corp. v. United States, 307 U.S. 125 (1939). See generally DAVIS, ADMINISTRATIVE LAW TEXT § 30.04 (2d ed. 1972). Consider also Gray v. Powell, 314 U.S. 402 (1941).
The Hanly court, however, concluded that the "reasonableness" standard was inappropriate, finding that the question whether an impact was "significant" within NEPA was not a mixed question of law and fact. The court rather facilely declared that "the meaning of the term 'significantly' as used in § 102(2)(C) of NEPA can be isolated as a question of law." 471 F.2d at 829 [2 ELR 20717, 20720]. The court proceeded to apply Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971). In Overton Park, however, the Court was concerned with the applicability of "plain and explicit" statutory language, 401 U.S. at 411 [1 ELR 20110, 20112], and there was therefore clearly no mixed question of law and fact.
Determination whether there is a significant environmental impact, however, does present such a mixed question, as Hanly recognized. 471 F.2d at 828. The determination, however, is not so readily separable into legal and factual components. When an agency determines that no impact statement is necessary, it is not only making factual findings concerning the impact, but it is also defining the term "significant" as used in NEPA. Hanly chose the arbitrary and capricious standard in part because it permited agencies "some leeway in applying the law to factual contexts in which they possess expertise." 471 F.2d at 829-30 [2 ELR 20717, 20720]. Unlike most administrative decisions, however, which are confined to the area that the agency is charged with administering, and which arise in the context of administrative expertise, the decision not to prepare an impact statement involves areas of expertise cross-cutting the ordinary compartmentalization of administrative functions. All agencies are charged with protection of the human environment, yet they possess no special technical knowledge of environmental concerns. Unlike ordinary administrative decisions, therefore, the decision to dispense with an impact statement cannot so readily be deferred to the agency.
In addition, NEPA was designed to assure maximum administrative [8 ELR 20679] scrutiny of proposed actions for their impact upon the human environment. If the agencies were afforded broad leeway in determining whether such scrutiny was necessary, effectuation of congressional policy could be significantly hampered. A number of courts have adopted the more stringent "reasonableness" standard in reviewing an administrative determination not to prepare an impact statement. See, e.g., City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 [4 ELR 20700] (8th Cir. 1974); Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973); Hiram Clark Civic Club, Inc. v. Lynn, 476 F.2d 421 [3 ELR 20287] (5th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463 [3 ELR 20041] (5th Cir. 1973); Faircrest Site Opposition Committee v. Levi, 418 F. Supp. 1099 (N.D. Ohio 1976); City of Santa Clara v. Kleppe, 418 F. Supp. 1243 (N.D. Cal. 1976); Mont Vernon Preservation Soc'y v. Clements, 415 F. Supp. 141 (D.N.H. 1976); Conservation Council of North Carolina v. Costanzo, 398 F. Supp. 653 [5 ELR 20666] (E.D.N.C. 1975). The Sixth Circuit has made no pronouncement on the standard to be applied to review of an agency determination to dispense with an impact statement. Nevertheless, policy and logic dictate the use of a "reasonableness" standard.
IV. Basis for Review
In general, judicial review of agency action is based on the administrative record. See 5 U.S.C. § 706. Application of this rule, however, presupposes the development of a record at the administrative level. Failure to develop such a record in determining that no impact statement need be issued, is of itself sufficient basis for reversal of the agency action, because NEPA was designed "to require federal agencies to affirmatively develop a reviewable environmental record." Hanly v. Mitchell, 460 F.2d 640 [2 ELR 20216] (2d Cir.), cert. denied sub nom., Hanly v. Kleindienst, 409 U.S. 990 (1972).
The initial inquiry is, therefore, whether there is a reviewable administrative record, and this determination necessarily considers a broader range of facts than those considered by the agency.If an adequate administrative record has been developed, review of the determination is confined to the record.
A. Adequacy of the Administrative Record
The CEQ regulations and the Forest Service Manual require thorough consideration of the environmental impact of proposed actions. The plaintiff alleges that the Forest Service failed to take a "hard look" at the proposed spraying.Plaintiff asserts that the environmental analysis "skirts the crucial environmental concern relative to the use of the herbicide 2,4,5-T," and in support has prepared a chart comparing excerpts from testimony in the hearing of plaintiff's motion for a preliminary injunction with portions of the environmental analysis.10 At this stage, however, the court must determine not whether the assertions in the environmental analysis are factually correct, but whether that analysis gave sufficient consideration to those adverse impacts alluded to by plaintiff's witnesses at the hearing on the request for a preliminary injunction.
Plaintiff's objections to the analysis center around seven [8 ELR 20680] areas: (1) the scope of biological activity of 2,4,5-T, (2) the capacity of 2,4,5-T to cause teratogenetic11 effects, (3) the toxicity of 2,4,5-T, (4) the persistence of 2,4,5-T in living organisms, (5) the persistence of 2,4,5-T in the environment, (6) the possibility for human contact with 2,4,5-T, and (7) the potential for contamination of running water. The question is whether adequate consideration was given these factors in the environmental analysis.
Plaintiff disputes a statement in the analysis asserting that 2,4,5-T has "little biological acitivy . . . beyond the chemical action on vegetation." (See Brief of the Attorney General of Michigan in Opposition to Defendant's Motion to Vacate the Preliminary Injunction at 10.) Plaintiff cites testimony in the earlier hearing to the effect that there have been "many instances . . . where there have been poisonings by the use of 2,4,5-T" and testimony by a laboratory researcher that tests with 2,4,5-T disclosed "a reasonably high incidence of defects involving the palate, the cleft palate, . . . defects of the eyes" and "defects of the limb" frequently "a slippage of the tendon in the ankle joint, such that legs were twisted," in laboratory animals. The enviornmental analysis, however, does consider the possibility of teratogenetic effects:
Early studies (1965-1968) by Bionetics Research Laboratories showed 2,4,5-T, in particular, to have teratogenetic (capable of causing birth defects) properties in mice and rats. Later work indicated tetrechlorodioxins were largely responsible for the results found. As a result U.S. Department of Agriculture on May 1, 1970 cancelled the registration for use on food crops. Uses on pasture, forest, and industrial uses were not cancelled. Also phenoxy-herbicide manufacturing processes were subsequently refined to produce a product containing less than 0.1 ppm (0.0000003 mg/kg soil within plow layer after application) tetrachlorodioxin. Use of 2,4,5-T on rice was reinstated on June 28, 1974.
More recent studies (Johnson, 1971) with presently available commercial forms of 2,4-D and 2,4,5-T showed no teratogenic effects in rats at rates up to 50 mg/kg/day and 87.5 mg/kg/day, respectively. The National Academy of Sciences Advisory Committee on 2,4,5-T wrote the following in their report to the Environmental Protection Agency.
(Much of the general toxicity attributed to 2,4,5-T in the past now appears to have been caused by the contaminant TCDD (dioxin). The herbicide when essentially free of this contaminant, e.g., 1 ppm, has relatively low toxicity for all animal forms in which it has been tested.)
These data and findings indicate that the use of present herbicide formulations at the planned rate of application would have virtually no impacts on man or animal forms.
Plaintiff also contests a statement in the environmental analysis that "2,4-D and 2,4,5-T are low-toxicity compounds that do not persist in living organisms and break down quickly under normal environmental conditions." (See Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction at 7.) Plaintiff cites testimony at the hearing on the request for a preliminary injunction, where Dr. Verrett stated:
I can say that of the 800 chemicals that I have tested . . . dioxin, the tetra-chloro dibenzo-p-dioxin, which is the principal contaminant of 2,4,5-T, is the most toxic material that I have tested.
Testimony of Dr. Jacqueline Verrett, Aug. 22, 1974, at 47-48. The analysis, however, does consider the toxicity of dioxin, noting its teratogenetic capacity. (See Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction at 12.) The analysis also notes that "phenoxy-herbicide manufacturing processes were subsequently refined to produce a product containing less than 0.1 ppm . .. tetrachlorodioxin." Id. The analysis then cites a report of the National Academy of Sciences to the Environmental Protection Agency, which found that 2,4,5-T, when essentially free of dioxin, "e.g., 1 ppm, has relatively low toxicity for all animal forms in which it has been tested." Id. As a result, the court must conclude that the toxicity of dioxin was considered by the agency in the environmental analysis.
Plaintiff also challenges the Forest Service's assertion that 2,4,5-T "do[es] not persist in living organisms and break[s] down quickly under normal environmental conditions." (Exhibit I to Plaintiff's Brief in Support of Motion to Vacate Preliminary Injunction at 7). Although there was testimony by plaintiff's witnesses concerning persistence of dioxin in the soil, (See Testimony of Dr. Arthur Westing, Aug. 22, 1974, at 97), none of plaintiff's witnesses testified concerning persistence of 2,4,5-T. The testimony concerning dioxin was based on vastly higher dioxin levels at spray applications about 10 times the amount proposed for the Ottawa National Forest. At lower spray levels it was determined that the herbicide 2,4,5-T was very short-lived in the environment, entirely disappearing within six or seven months. (See Testimony of Dr. Alvin Young, Aug. 23, 1974 at 301-03.) In addition, the analysis states that 2,4,5-T concentration in vegetation declines by 80 to 99 percent in 30 days and on the forest floor about 90 percent in six months. For these reasons, the court concludes that the Forest Service did not neglect to consider the possible adverse environmental impact alleged by plaintiff.
Plaintiff also contends that the Forest Service failed adequately to consider the effects and possibility of human contact with the herbicide. The analysis, however does consider such contact, noting the possibility of human ingestion of 2,4,5-T through consumption of raspberries and of ingestion of dioxin from the environment. The analysis considers the available data and concludes that the proposed spraying poses little threat to humans, provided proper precautions are observed.
Plaintiff further contends that the Forest Service did not give adequate consideration to possible contamination of streams, lakes, and running water with its prospects for wider dispersion of 2,4,5-T and the dioxin contaminant. This factor, however, is considered. The analysis notes that there is "[n]o permanent standing or running water within the project area." (Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction at 3.) Studies noted in the analysis have found that 2,4,5-T does not leach in the soil or move any distance through the soil profile, and the analysis concludes that there is little chance of ground water contamination. (See id. at 10.) Although the analysis notes that surface water runoff is likely should a rainstorm occur, significant runoff is not anticipated because of the nature of the soil and the vegetative cover. In addition, the analysis considers the results of water quality monitoring for past spraying projects. Id. The conclusion that there is "virtually no possibility of herbicides reaching a water source from this proposal," id. at 10, is based upon a thorough consideration of the relevant risks.
In addition to the specific objections raised by the plaintiff, the environmental analysis considers other conceivable problems. The effect of 2,4-D and 2,4,5-T on birds, mammals, and other higher vertebrates is discussed. The analysis cites a study on pheasant mortality from 2,4-D and 2,4,5-T and also notes the possible adverse impact on egg production in birds and on mammal fetuses, stating that with respect to birds, the timing of the spraying would be likely to affect relatively few species. The analysis also considers possible changes in the chemical composition of plants in the spray area, concluding that because of the unpalatability of the species known to accumulate 2,4-D and 2,4,5-T, herbivores are unlikely to be affected.
The Forest Service also thoroughly discusses alternatives to the spraying proposal. Ten other alternatives are noted: (1) no cultural treatment, (2) mechanical hand release, (3) aerial spray with other chemicals, (4) aerial release using an "invert emulsion," (5) ground application of herbicide, (6) basal spraying (application of herbicide to the base instead of foliage), (7) aerial application of 2,4-D with stem injuction of amine type herbicide for maples, (8) aerial spray of 2,4-D with basal spray of maples, (9) use of mist blowers, and (10) use of federal jobs programs as a source of labor. The economic, environmental, and human advantages and disadvantages of each alternative are considered and the analysis concludes that aerial application of 2,4-D and 2,4,5-T [8 ELR 20681] is best suited to the situation in the Ottawa National Forest. (See generally Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction at 14-20.)
Plaintiff's objections to the environmental analysis involve not so much the failure of the analysis to consider all important and probable environmental impacts, as a disagreement with the conclusion that adverse impacts are relatively minimal. The court must conclude that the Forest Service has complied with "the procedures required by law," 5 U.S.C. § 706(2)(D), meeting the court's former objections. Consequently, there is a reviewable administrative record, and the court must proceed to determine whether, based on this record, the Forest Service's decision not to prepare an impact statement was "reasonable."
B. Major Action with Significant Impact
Two schools of legal thought have evolved concerning the threshold requirement for an impact statement. Certain courts and administrative regulations require both a finding that a project is major and a finding that it will have a significant effect on the environment before an impact statement is necessitated. Others have declared that agency action, regardless of its magnitude, mandates an impact statement if it will have a significant effect on the environment. Under either standard, however, if there is no significant impact on the environment, the impact statement is unnecessary.
In reviewing the agency decision, the court is confined to determining whether the decision was "reasonable." The court is not free to substitute its own judgment for that of the agency.12 In addition, review is based upon the administrative record.
The proposed spray area encompasses about 73 acres. The environmental analysis determined that there would be no significant adverse impact on fish, mammals, birds, human beings, water resources, and certain other aspects of the forest environment. The court finds this conclusion reasonable based on thorough study of the currently available technical knowledge. It is clear that the spraying, if it works as anticipated, will destroy certain trees and plants now located within the area. This vegetation consists largely of young aspen, birch, and maple, as well as wild raspberries. None of the vegetation to be destroyed is an endangered species, and in addition, these same species are found throughout the Ottawa National Forest. Although the 73-acre area will assume the characteristics of a red pine forest, it is anticipated that some of the removed vegetation will eventually return.
A survey of the cases suggested by plaintiff, and of other cases decided under NEPA, discloses no case where an action of this magnitude and impact has been held to be a major federal action significantly affecting the human environment. In Barta v. Brinegar, 358 F. Supp. 1025 [4 ELR 20038] (W.D. Wis. 1973), a highway project was held to mandate an impact statement. Although plaintiff contends that this case involved relatively minor impact on 66 acres of one person's land, and additional indirect impact on another's land, it is clear that the project was of much greater dimensions. It involved construction of a highway of several miles, with a much greater expenditure of public funds than is anticipated here. The highway also ran through a number of wetlands providing food, shelter, and nesting areas for wildlife. The court concluded that there would be significant danger to animal life.13 In addition, the highway ran in the vicinity of many other homes in the area, posing the threat of additional adverse indirect impacts on these people. 358 F. Supp. at 1027-28.
Plaintiff also cites Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973), which involved the clear-cutting of timber from about 770 acres. This, however, is over 10 times the area included within this proposed project, and if the spray area were of this magnitude, the finding that there was no significant impact would be subject to serious doubts. Finally, plaintiff cites Sherr v. Volpe, 466 F.2d 1027 [2 ELR 20453] (7th Cir. 1972). There the court found the construction of a 12-mile section of highway to require an impact statement, but only after finding that there would be damage to wildlife habitat, stripping of forested land with erosion likely, increased pollution, and "impingement upon the aesthetic natural beauty and recreational value of the area." In the present case, however, the Forest Service has concluded that there are no impacts of this significance, and the court has found this determination reasonably based on the record. The court therefore finds that the agency conclusion that the 73-acre spraying project is not "a major Federal action with significant impact on the human environment" was reasonable under the circumstances.
C. Controversy Concerning Environmental Impact
CEQ and Forest Service regulations require preparation of an environmental impact statement for "major actions, the environmental impact of which is likely to be highly controversial." 40 C.F.R. § 1600.6(a); FSM 8411, 39 Fed. Reg. 38249 (1974). The testimony at the earlier hearing in this case demonstrated the controversy in the scientific community concerning the use of 2,4,5-T. Much of the controversy can be attributed to differing dioxin levels, different herbicide concentrations, and the differences between conditions in the laboratory and in the field. Nevertheless, even if these differences are allowed for, there is still substantial controversy surrounding the use, of 2,4,5-T. To date, even the EPA has apparently been unsuccessful in dealing with this controversy, and it is certainly not one susceptible to resolution by the courts.
Although there is controversy concerning the use of 2,4,5-T in general, the CEQ and Forest Service regulations require preparation of an impact statement for projects whose impact is likely to be controversial only if the proposed action is also "major." For the reasons stated, the court has concluded that the spraying of the 73 acres is not a "major Federal action." The regulations, therefore do not apply.
Although in enacting NEPA Congress recognized the increasing threat of modern technology to the human environment, it also recognized the need to allow government agencies to freely discharge their assigned functions insofar as is consistent with the goal of environmental protection. As a result, Congress required the lengthy and detailed consideration of the environmental impact statement only for "major Federal actions significantly affecting the nature of the human environment."
The Forest Service has thoroughly considered the environmental risks associated with its proposed project. In fact, the environmental analysis approaches an impact statement in its detail and thoroughness.14 Its conclusion that the project is not major and does not significantly affect the environment is reasonable, and the court's role must end here.
The foregoing constitutes the court's findings of fact and conclusions of law. For the reasons stated defendant's motion to vacate the preliminary injunction is hereby granted.
IT IS SO ORDERED.
1. The original project encompassed 104 acres, but a reduction in acreage has occurred due to pine mortality and increased buffer strips adjacent to private land to minimize the possibility of drift. See Environmental Analysis Report, January 23, 1976, Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction at 1.
2. The Forest Service proposes to apply "a 50-50 mixture of low volatile esters of 2,4-D and 2,4,5-T applied at a rate of three pounds acid equivalent per acre." Id.
3. At current prices, the Forest Service estimates that in 40 years the red pine timber will be worth about $600 to $800 per acre. This controversy thus involves a gross value of about $40,000 to $60,000.
4. Hereinafter referred to as "dioxin." Dioxin is also called TCDD. See Testimony of Dr. Logan A. Morris, Aug. 23, 1974 at 263.
5. Testimony of Dr. Katherine D. Courtney, Aug. 22, 1974 at 66.
6. Testimony of Dr. Jacqueline Varrett, Aug. 22, 1974 at 44.
7. Testimony of Dr. Katherine D. Courtney, Aug. 22, 1974 at 67.
8. The court's conclusion was premised, at least in part, on Environmental Protection Agency (EPA) regulations requiring a negative statement to describe "the proposed activity and its effect . . . and the reasons for concluding that there will be no significant impact." 40 C.F.R. § 6.25 (1974). The EPA regulations have since been superseded by CEQ regulations. See 40 C.F.R. § 1500.6 (1976). It is evident, however, that the initial environmental analysis fell short of the FSM standards in any event.
9. H.R. REP. NO. 91-378, 91st Cong., 1st Sess., 1969 U.S. CODE CONG. & ADMIN. NEWS 2753 stated:
By land, sea, and air, the enemies of man's survival relentlessly press their attack. The most dangerous of all these enemies is man's own undirected technology. The radioactive poisons from nuclear tests, the runoff into rivers of nitrogen fertilizers, the smong from automobiles, the pesticides in the food chains, and the destruction of topsoil by strip mining are examples of the failure to foresee and control the untoward consequences of modern technology.
Thus spoke the New York Times in an editorial on May 3 of this year. The editorial, which endorsed the type of legislation embodied in H.R. 12549, may understate the complexity and urgency of the challenge. The problem is deep, and it touches on practically every aspect of everyday life: economic, scientific, technological, legal, and even interpersonal."
Consider generally Comment, Projected Environmental Harm: Judicial Acceptance of a Concept of Uncertain Risk, 53 J. URBAN L. 497 (1976).
[Kelly v. Butz, 404 F. Supp. 925, 936-37].
|Testimony||Environmental Analysis Report|
|Dr. Jacqueline Verrett testified at|
|great length concerning the results|
|of studies conducted on chickens|
|and rats. She stated in relation to|
|"A. . . . we have had many instances||Controversy in the 1960's relating|
|in this country where||to military uses of 2,4-D and 2,4,5-|
|there have been poisonings by the||T in Indochina was responsible in|
|use of 2,4,5-T, and apparently||large measure for the focusing of|
|contamination . . . with dioxin||public attention on domestic uses|
|. . ." (T.T. 41)||of these chemicals. Subsequent|
|research studies have|
|brought forth evidence that little|
|biological activity extends beyond|
|the chemical action on vegetation.|
|"A. In the case of 2,4,5-T, we||More recent studies (Johnson,|
|found very definite abnormality||1971) with presently available|
|associated with it, we found||forms of 2,4-D and 2,4,5-T|
|some toxicity . . . we saw a||showed no teratogenic effects in|
|high incidence of defects||rats at rates up to 50 mg/kg/day|
|involving the palate, the cleft||and 87.5 mg/kg/day, respectively.|
|palate . . . defects of the eyes||(p. 12)|
|. . . a slippage of the tendon in|
|the ankle joint, such that the legs|
|were twisted . . ." (T.T. 43-44)|
|". . . What was striking about|
|these samples . . . is that|
|there were differences in|
|the acute toxicity, there were not|
|real differences in the level of|
|abnormalities . . ." (T.T. 45)|
|"Q. Based on your experimental|
|work, could you offer an opinion|
|on the toxicity of dioxin?|
|"A. I can say that of the 800||2,4-D and 2,4,5-T are low-toxicity|
|chemicals that I have tested . . .||compounds that do not persist in|
|this includes pesticides . . . I . . .||living organisms and break down|
|think 50 pesticides, several hundred||quickly under normal environmental|
|food additive chemicals . . .||conditions. (p. 7)|
|dioxin, the tetro-chloro|
|which is the principal|
|contaminant of 2,4,5-T, is the|
|most toxic material that I have|
|tested . . ." (T.T. 47, 48)|
|"In many cases, man is the much||There will be a possibility of human|
|more sensitive species. This is||contact with chemicals through|
|particularly true with respect to||other uses of the land for a short|
|drugs . . ." (T.T. 48)||period of time following the project.|
|"I think it is not wise to use|
|2,4,5-T, particularly since it|
|cannot be made without an|
|unavoidable contamination with|
|dioxin . . ." (T.T. 49)|
|Dr. Arthur Westing personally|
|the Southeast Asia area upon|
|four occasions, from 1969 to 1973,|
|"and each time I visited areas that|
|were sprayed by 2,4,5-T" (T.T.|
|76). The purpose of his trip was "to|
|study the impact of 2,4,5-T . . ."|
|(T.T. 76) He conducted his study in|
|the heavily sprayed areas (war|
|zones C & D) collecting:|
|". . . live fish and shrimp . . .||It is approximately one mile from|
|out of streams . . . several miles||the project area to the nearest live|
|away from where the area was||stream. Most of the area is over|
|sprayed . . . and recently these||two miles from running water. It is|
|were tested for their dioxin levels,||nearly three miles to the nearest|
|and they did contain several||lake (Bond Falls Flowage). (p. 5)|
|parts per trillion of dioxin. It was|
|detectable dioxin by methods|
|that our Commission developed."|
|(T.T. 78, 79)|
|The study continued to,|
|"hospital records in sprayed and||That the use of present herbicide|
|in unsprayed areas, and we||formulations at the planned rate of|
|found that the rate of birth defects||application would have virtually no|
|in these unsprayed areas'||impacts on man or animal forms.|
|hospitals went up during the period||(p. 12)|
|of heavy spraying." (T.T.|
|Dr. Westing's conclusion is as|
|"I would certainly have no objection||With the rapid chemical breakdown|
|to the use of herbicides in||of these herbicides, there will|
|general, to doing work in forests,||be no cumulative effects from projects|
|I mean, forestry approved work,||done in following years either|
|but certainly I would not recommend||within the same area or within the|
|2,4,5-T. I would never recommend||watershed in adjacent areas. (p. 10)|
|2,4,5-T on the basis of||2,4-D and 2,4,5-T are . . . compounds|
|present knowledge because there||pounds that do not persist in living|
|is no way to make 2,4,5-T without||organisms and breakdown quickly|
|dioxin, and our own studies||under normal environmental|
|have shown that this dioxin can||(p. 7)|
|get from one place where it's|
|sprayed, several miles away, into|
|the food of people, even several|
|months after it's sprayed, and dioxin|
|is in the 2,4,5-T, and therefore|
|I would certainly not recommend|
|the use of 2,4,5-T."|
11. The capacity to cause defects or abnormalities in the fetus or embryo.
12. Consider DAVIS, ADMINISTRATIVE LAW TEXT § 30.06 (2d ed. 1972), where Professor Davis considers the factors influencing the choice between the "reasonableness" standard and the substitution of judicial judgment for that of the agency. Davis is of the opinion that the choice is made not so much as a matter of law as upon the facts and circumstances of the particular case.
13. The environmental analysis concludes that the danger and dislocation of animals would be minimal. Within the Ottawa National Forest there are many other suitable areas for nesting and other wildlife activity, and any dislocation would be relatively insignificant.
14. Compare generally Exhibit I to Defendant's Brief in Support of Motion to Vacate Preliminary Injunction, with The Use of Herbicides in the Eastern Region, Final Environmental Statement, Defendant's Exhibit C, Hearing of Aug. 22 & 23, 1974.
8 ELR 20676 | Environmental Law Reporter | copyright © 1978 | All rights reserved