Peshlakai v. Duncan

No. 78-2416 (D.D.C. June 19, 1979; September 6, 1979)

The court denies plaintiffs' motions for a temporary restraining order and a preliminary injunction in a suit challenging federal approvals of uranium mining and milling activities in the San Juan Basin of New Mexico for alleged violations of the National Environmental Policy Act (NEPA). The court holds that plaintiffs have not made the requisite showing of immediate and irreparable injury in connection with their motion for a temporary restraining order against the Secretary of the Interior's approval of an interim mining and reclamation plan for a pilot in situ uranium leaching project.The court finds that the approval would not irrevocably commit the Secretary either practically or legally to formal approval of the project and that environmentally harmful activities would not be undertaken pursuant to the interim approval until the court ruled on the motion for a preliminary injunction.

The motion for injunctive relief also directly concerns only the pilot project. In determining that plaintiffs' chances of success on the merits of their claims of NEPA violations are minimal, the court first upholds defendants' determination not to prepare an environmental impact statement (EIS) in conjunction with the approval of the in situ mining plan. Reviewing the case law regarding burdens of proof and standards of review for negative threshold determinations under NEPA, the court rules that plaintiffs have not shown that the Department of the Interior failed to take a hard look at the project or was unreasonable in concluding that it would have no significant adverse environmental effects.The court finds that the threat of contamination of the surrounding ground water and increased radiation exposure of workers and members of the public as well as the magnitude of disturbances of the land surface will be minimal. In addition, the enconomic and social impacts of the project appear to be favorable. The court next rules that although defendants did violate NEPA by failing to prepare either an EIS or environmental assessment on the 1972 sale of uranium exploration and mining leases on Navajo lands, plaintiffs are barred by laches from asserting such a claim because the seven-year delay between the lease sale and the filing of this lawsuit is unreasonable. The court next rejects plaintiffs' contention that preparation of a regional EIS was required on the basis of the Supreme Court's decision in Kleppe v. Sierra Club, 6 ELR 20532. Noting that there is no comprehensive federal plan for development of this region, the court determines that the federal approvals of various activities in the basin constitute widely scattered actions by six different agencies taken or planned during a 30-year span rather than a related set of actions whose cumulative effects must be reviewed in a regional EIS. Plaintiffs have thus failed to show that the absence of a regional EIS at this time is arbitrary or unreasonable. The court also points out that even if a regional EIS were required, its absence would not warrant the issuance of an injunction against the in situ project for which the site-specific requirements of NEPA have been met. And finally, the court rules that injunctive relief is additionally inappropriate because the balance of injuries and equities tips in defendants' favor.

Counsel for Plaintiffs
Bruce J. Terris, Norman L. Dean
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Counsel for Federal Defendants
Thomas J. Riley, David C. Cannon, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2845

Counsel for Intervening Defendants
Daniel Joseph, Randall L. Sarosdy
Akin, Gump, Hauer & Feld
Suite 400, 1333 New Hampshire Ave. NW, Washington DC 20036
(202) 457-7700

Peter J. Nichols, Patrick Norton
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

[9 ELR 20691]

Greene, J.:

Order Denying Temporary Restraining Order, June 19, 1979

This is a motion for temporary restraining order to enjoin the Secretary of the Interior from approving an interim mining and reclamation plan for pilot testing of in situ uranium leaching submitted by the Mobil Oil Corporation. The motion has been filed in the context of litigation which seeks to half further federal approvals of uranium mining and milling in New Mexico and Wyoming because of alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

The Secretary has previously indicated his intention to approve the plan at issue here, but he agreed to provide adequate notice before granting final approval so as to permit plaintiffs to seek a temporary restraining order. Such notice has now been provided, and the Secretary has indicated that he will grant approval for the commencement of the project on June 20, 1979. Plaintiffs' motion for temporary restraining order was heard on June 18, 1979.

Plaintiffs claim that they would be irreparably injured by the proposed action of the Secretary in three different respects.

First. Plaintiffs assert that Mobil has completed construction of the proposed project and is capable of commencing operations within a matter of hours after it receives approval of its plan. Accordingly, it is claimed, there is imminent danger that the project will cause direct, physical harm to the environment. However, Mobil has represented to the Court, both orally and in writing, that, even if the Secretary approves the project, it will take no action¹ that could not be taken in the absence of approval until after the Court has ruled on a pending motion for preliminary injunction.² It is thus clear that no physical harm to the environment can occur until the Court has had an opportunity to consider and decide the pending preliminary injunction motion.

Second. Plaintiffs claim that approval by the Secretary would constitute a commtment by the government to the project, and that this alone, under applicable law, entitles them to a temporary restraining order. The pertinent precedents appear to suggest that to entitle a plaintiff to relief on this basis the commitment must be one of resources as distinguished from a legal or paper commitment. See, e.g., Mr. Justice Marshall's opinion in New York v. Kleppe, 429 U.S. 1307 (1976). In any event, the commitment of the federal authorities here is not irrevocable now and will not be irrevocable after the Secretary grants formal approval of the plan; it will clearly be subject to recission in the event that the Court finds that the Secretary's decision was violative of NEPA; and government counsel expressly acknowledged that plaintiffs' case against the governmental defendants will not be mooted or otherwise jeopardized in any way as a result of the impending action of the Secretary of the Interior. As for plaintiffs' claim that the Secretary will be committed psychologically to the project once he has granted his formal approval, it is too speculative for consideration by the Court. Plaintiffs are entitled to assurance that the commitment is not irreversible either as a practical or as a legal matter, and they have such assurance here.

Third. Plaintiffs argue finally that they will suffer irreparable injury simply because their legal rights under NEPA will have been violated. While that argument may well have validity in the context of a motion for preliminary or permanent injunction, they have cited no decision of any court in which a temporary restraining order has issued on such a basis alone. Their arguments on this issue obviously encompass questions going to the merits of the action, and it could be that they may appropriately be addressed at later stages of these proceedings, but they do not support the relief sought now.

Thus, it is apparent that plaintiffs have been unable to make the requisite showing of immediate and irreparable injury.The Secretary, on the other hand, has an interest in the performance of his lawful duties, and he is entitled to exercise those responsibilities free of judicial restraint absent sufficient legal cause. Moreover, it may well be that, as defendants suggest,³ the additionof the conditions accompanying the Secretary's approval will provide further concreteness to the record for purposes of court review.

For the reasons stated, it is this 19th day of June, 1979,

ORDERED That the motion for temporary restraining order be and it is hereby denied, and it is further

ORDERED That defendants' oppositions to the motion for preliminary injunction shall be filed by June 29, 1979, plaintiffs may file a reply by July 6, 1979, and the motion shall be heard at 10:00 a.m. on July 10, 1979.

Order Denying Preliminary Injunction, September 5, 1979

Upon consideration of plaintiffs' motion for preliminary injunction, the memoranda filed by plaintiffs, defendants, and intervenors, the oral arguments, and the entire record herein, it is this 5th day of September 1979, in accordance with the Opinion filed this date,

ORDERED that the motion for preliminary injunction be and it is hereby denied.

Opinion

This action seeks to halt federal approvals for uranium mining and milling activities in the San Juan Basin¹ which accounts [9 ELR 20692] for nearly half of the nation's production of uranium and almost three-fifths of its uranium reserves. The activities in question are designed to permit the production of uranium concentrate, commonly called yellowcake,² and it is claimed by plaintiffs that they may not be allowed to continue absent the preparation of certain environmental impact statements (EISs). The motion for preliminary injunction presently before the court directly concerns only one project, the so-called in situ leaching project at Crownpoint, New Mexico.³ However, several of the theories upon which plaintiffs base their claim for relief on the motion have far broader implications.

Plaintiffs⁴ argue that the federal defendants⁵ have violated or are about to violate the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., in three major respects. It is claimed, first, that approval of the mining plan for the Mobil⁶ in situ project would violate NEPA because such approval would be a major federal action significantly affectin the quality of the human environment on which no EIS has been prepared. Plaintiffs contend, second, that the lease sale underlying the proposed project violated NEPA because neither an EIS nor an environmental assessment (EA) was prepared on that sale. And third, it is argued that approval of the project is part of a number of actions in the San Juan Basin region for which a regional EIS should have been, but was not, prepared. These contentions will be considered seriatim.

Mobil's in situ project, located on five acres of land in the Crownpoint area, is a pilot project⁷ which has as its purpose the determination whether uranium leaching (also known as solution mining) is feasible in New Mexico.⁸ Traditional mining for uranium is carried on underground. Solution mining, most simply described, involves the circulation of water and a chemical solution called leachate⁹ to underground areas where the uranium is located by means of a system of injection and production wells. The uranium is oxidized and dissolved underground and brought to the surface as part of a fluid. That fluid is then pumped to an ion exchange column where the uranium is deposited on resin beads through an ion exchange process. The remaining fluid, which no longer contains uranium, is then pumped back underground through the injection wells, with the chemical solution added, in a continuous cycle.

A 10-year lease to the land underlying the proposed in situ project was sold to Mobil by the Bureau of Indian Affairs (BIA)¹⁰ in February 1972. Thereafter, Mobil received approval from the United States Geological Survey (USGS) for exploration plans involving the site. Between 1973 and 1977, Mobil drilled 124 exploration holes in the area, and in May 1978, it applied for approval of a mining and reclamation plan (25 C.F.R. § 177.7). The USGS prepared an environmental assessment, some 164 pages in length, with an appendix consisting of 70 pages. After several layers of review within the Department of the Interior, and based upon that EA, the Department ultimately concluded that a full-fledged environmental impact statement was not required because the pilot project would not have significant environmental impacts. On June 21, 1979, the Secretary of the Interior approved Mobil's mining plan. The motion for preliminary injunction challenges that determination and seeks to halt Mobil's implementation of the permit it received from the government.¹¹

NEPA requires the preparation of an EIS for every major federal action which may have a significant impact on the quality of the human environment. See Scientists' Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 1088-89 [3 ELR 20525] (D.C. Cir. 1973). Plaintiffs contend that the in situ project is such an action, and they rely on several factors in support of that contention. Before discussing these specific factors, it may be useful to state briefly the standard of review that must be applied by the court.

The responsibility for making a threshold determination as to whether an EIS is required by NEPA fora particular project lies with the federal agency involved. Matlakatla Indian Community v Adams, 427 F. Supp. 871, 874 (D.D.C. 1977); First National Bank of Chicago v. Richardson, 460 F.2d 640, 645 (2d Cir. 1972). The burden is on plaintiffs to establish that a decision not to require an EIS constitutes a violation of NEPA. Sierra Club v. Lynn, 502 F.2d 43, 52 [4 ELR 20844] (4th Cir. 1974); Hiram Clarke Civics Club, Inc. v. Lynn, 476 F.2d 421, 426 [3 ELR 20287] (5th Cir. 1973). Such a decision will be reversed by a court only if it is unreasonable (Wyoming Outdoor Coordination Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973)) or arbitrary and capricious. Hanly v. Kleindienst, 471 F.2d 823, 829 [2 ELR 20717] (2d Cir. 1972).¹²

The Supreme Court in two recent decisions has more explicitly defined the role of a reviewing court and the conclusion that emerges from these decisions is that such a court "must ensure that the agency has taken a 'hard look' at environmental consequences," and that, if it has done so, the agency determination may be reversed only if it is arbitrary. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532, 20537 n.21] (1976); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 [8 ELR 20288] (1978); see also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1970).

Plaintiffs do not, however, have the burden of demonstrating that a particular federal action will necessarily affect the human environment to a significant extent. They need merely show that such action may have such an effect. City of Davis v. Coleman, 521 F.2d 661, 674 n.16 [5 ELR 20633, 20637 n.16] (9th Cir. 1975); Maryland National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1039 [3 ELR 20702] (D.C. Cir. 1973); 40 C.F.R. § 1500.6(a); 36 Fed. Reg.19344. But see, note 24 infra.

It is with these general principles in mind that the particular claims of plaintiffs must be examined.

Water Quality

Plaintiffs contend that "excursions" may occur, that is, water may escape from the in situ project site to contaminate the Westwater Canyon aquifer (by horizontal release of fluid) or the Dakota aquifer (by vertical release). However, the record shows that, for a number of reasons, such an event, while it is not impossible, is so unlikely that the probability of its occurring is infinitesimal.

[9 ELR 20693]

First, more fluid is constantly pumped out of the system than is injected into it.¹³ This creates a net inflow of surrounding ground water into the area and thus has a tendency to confine the leachate to the production zone. Second, hydrology tests simulating the operation of the system conducted by Mobil indicate that the leachate can be confined to that zone. Mobil has performed computer modeling studies for the pilot test, which simulated its underground leachate flow patterns, with the same result. Third, Mobil has had prior experience with the in situ leaching technology in South Texas for a four-year period, and it has never experienced an excursion there. Fourth, six monitor wells will ring the site and samples will be taken periodically to determine whether any leachate might have escaped despite these precautions. The likelihood of detecting an excursion by this method is nearly one hundred per cent, and appropriate remedial action, which has been considered in exhaustive detail, can be taken. Fifth, the water supply of Crownpoint would be unaffected even if all these safety measures failed because the ground water flow is away from the town rather than toward it. Moreover, according to one study, if the leachate were somehow carried toward Crownpoint, it would take 1,300 years to arrive there¹⁴ and would be rendered harmless long before then.

Plaintiffs argue next in regard to the water quality issue that Mobil will not restore that quality to its former levels after termination of the test project. The EA has noted that following the 14-month production period, Mobil will be required to restore the aquifer within eight months to the levels set by the New Mexico Quality Control Commission regulations,¹⁵ and Mobil will, in fact, do so. This task will be accomplished by a "flushing" operation in which leachate is no longer reinjected underground; water is pumped from the production wells to the surface; it is there treated and purified until it meets the restoration standards; and it is then reinjected into the Westwater formation. The EA has concluded that by this method all the chemicals can be completely removed and the water restored to appropriate levels. Indeed, Mobil has used this same flushing method in its South Texas operation, and the Texas Department of Water Resources considered the restoration there to have been a success.¹⁶ Laboratory tests likewise indicate that the aquifer can be restored to the New Mexico standards, and their results are strengthened by the fact that the flow of ground water surrounding the production zone will aid in restoring the acquifer beyond the data those tests were able to take into account.

It is not without significance in this regard that the water in the Westwater formation aquifer is by no means pure crystalline drinking water, but, largely because of the presence of uranium, if even how fails to meet the community water system standards set by the Environmental Protection Agency under the Safe Drinking Water Act. 42 U.S.C. § 300(f) et seq. The average gross alpha values and combined total radium-226 and -228 values in that portion of the aquifer underlying the project site are five times the maximum safe limits, and any further deterioration should it occur, contrary to every rational expectation — could hardly be regarded as having a significant impact on the human environment. Finally, it is worth noting that the total amount of water that will be recirculated during the pilot test is one one-hundred millionth of the estimated total water in the Westwater Canyon aquifer, and the amount of water that will be actually withdrawn is one-billionth of the water in the aquifer.

Radon Gas

Plaintiffs contend that uranium mining and milling increases the exposure of workers and of the public to potentially harmful radiation. While several possible sources of radiation are mentioned, plaintiffs emphasize especially the emission of radon gas, a decay product of uranium. That contention appears at first blush to be the most serious of those made by plaintiffs. However, upon examination, the radiation threat, too, is realistically nonexistent. According to the interim mining plan, "the maximum . . . additional exposure which might be received from facility operations will . . . add less than one hundredth of one per cent of the ambient radiation background." Or, as that plan also states it, any radon gas from the project "will be undetectable and at no location should exceed one per cent of normal background levels," that is, levels which exist in the atmosphere in any event.¹⁷ Indeed, "the radon . . . [would be] less than one per cent of what could be expected from a conventional uranium mine."¹⁸

Land Use Impacts

Plaintiffs argue that yellowcake production will result in surface disturbances, including the construction of roads, the flattening of the drill sites, and the clearing of the surface in the vicinity of the mine and ventilation shafts. These impacts, too, are of minimal significance. The administrative law judge who heard the petition of Sarah McCray to cancel the lease underlying the project determined that all surface areas affected by uranium exploration or production could be reclaimed to a condition at least as good as that existing prior to the start of operations, and that such a reclamation program was already in progress.¹⁹ Irrespective of whether the ALJ's findings should be given collateral estoppel effect as to all plaintiffs,²⁰ his decision clearly was substantively correct, and plaintiffs have made only a feeble effort to show otherwise.²¹

Cultural, Religious, and Socioeconomic Impacts

Plaintiffs next argue that yellowcake production in the area will "wreak havoc" with the culture and religion of the Navajo Indians residing there. Thus, it is said, the Navajo believe that man should maintain proper harmony with the natural world; that mining in the area would destroy places where Navajos pray and the plants they use to heal the sick; and that the plants themselves, in Navajo religious belief, have living spirits. In a somewhat different vein, plaintiffs argue that uranium mining in the area will create thousands of additional jobs and thus will attract many outsiders; and that the Navajos and others residing in the area would have great difficulty coping with the resulting social and economic disruptions.

Most of the arguments advanced by plaintiff are more appropriately addressed to the regional impacts issue discussed in Part IV infra, since the relatively small area involved in the in situ project would have only a minimal impact on Navajo culture in general in any event. However, whether as applied to the in situ project, or on a broader basis, plaintiffs' contentions are unpersuasive.

Sarah McCray claims that various adverse cultural and religious impacts will result on her land no which the in situ project is located. The administrative law judge found her not to be a credible witness, and this court, which heard her testify, concurs in that assessment. Extensive drilling activities were carried out on her property for years without the slighest objection from her. It was only early in 1978 when she made demands which Mobil would not meet that she joined with the organizational plaintiff in opposing the in situ project.

[9 ELR 20694]

Insofar as broader impacts are concerned, it is worth noting that the Navajo Tribal Council, elected by the Navajos, has not joined in the cultural and religious objections raised by these plaintiffs. See Johnson v. Chilkat Indian Village, 457 F. Supp. 384, 389 (D. Alaska 1978); Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir. 1974).²² Indeed, the supervisory archeologist for the Navajo Nation has stated that her inspection of the area revealed no surface indications of an historic or prehistoric nature, and that Mobil was to be:

. . . commended for its care and diligence in assuring protection of such priceless and irreplaceable cultural resources. If all organizations complied with the law as carefully as Mobil, our descendants would have no grounds for complaint about our custodianship of their heritage.

As concerns economic impacts from the in situ project, plaintiffs recognize, as they must, that "the development will also have aspects which could be regarded as positive for the Navajo, primarily in the from of higher income from jobs and, for the allottees whose allotments are to be mined, royalty payments" (Memorandum, p. 20).

The blunt fact is that the economic and social impacts appear to be overwhelmingly favorable, both in terms of creating jobs for an underdeveloped area and for a people badly in need of economic assistance, and in terms of a uranium production technology which is likely to be more humane and less costly than the traditional underground mining technique. These advantages are not offset by the very minor and speculative environmental impacts plaintiffs assert.²³

The short of the matter is that while plaintiffs have catalogued and described possible environmental impacts at great length, in vivid detail, and with considerable imagination and ingenuity, in the final analysis these impacts amount to very little, both individually and in the aggregate.²⁴ The Department of the Interior has taken a "hard look" at the in situ project through its lengthy and detailed²⁵ environmental assessment²⁶ and it has concluded that a full-fledged environmental impact statement is not required. Moreover, a draft EIS has been prepared for the environmental impacts of uranium development in the Crownpoint area (which will consider, among other things, the environmental impacts of in situ uranium leaching), as well as an EIS for Dalton Pass (located a few miles from Crownpoint) and a generic EIS on uranium milling. Another "hard look" was taken during the administrative hearing in April of this year at which the plaintiffs presented live and documentary evidence without being able to convince the administrative law judge.

Bearing in mind the technical expertise of the Department of the Interior, the lack of real environmental impact, and the fact that an EIS has never been required for a pilot test of solution mining, the court concludes that the Department's decision not to prepare an environmental impact statement for the in situ project was neither unreasonable nor arbitrary and that it must stand.

III

On February 15, 1972, the BIA conducted a lease sale in which it offered to sell uranium exploration and mining leases on Navajo lands, including the land underlying Mobil's in situ project. Under NEPA, an environmental impact statement would have been necessary for this lease. See Cady v. Morton, 527 F.2d 786, 793-4 [5 ELR 20445] (9th Cir. 1975); Davis v. Morton, 469 F.2d 593 [2 ELR 20758] (10th Cir. 1972); but see Sierra Club v. Hathaway, 579 F.2d 1162 [8 ELR 20736] (9th Cir. 1978). The Department of the Interior as a matter of practice now prepares environmental impact statements on similar oil and gas leases. See Sierra Club v. Morton, 510 F.2d 813 [5 ELR 20249] (5th Cir. 1975); Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978); County of Suffolk v. Department of the Interior, 562 F.2d 1368 [7 ELR 20637] (2d Cir. 1978). However, Interior did not prepare an EIS, nor did it prepare an environmental assessment to determine whether an EIS was required, and that, too, would be in violation of presently applicable law. See Arizona Public Service Co. v. Federal Power Commission, 483 F.2d 1275 [3 ELR 20776] (D.C. Cir. 1973); Maryland National Capital Park and Planning Commission v. Postal Service, 487 F.2d 1029, 1039 [3 ELR 20702] (D.C. Cir. 1973); 40 C.F.R. § 1508.9.

Thus, a violation of NEPA occurred, and the real issue on this aspect of the case is whether plaintiffs are barred by laches from pressing the point of the violation.

At the time of the original lease sale, the only relevant federal court decision was that of the District Court for the District of New Mexico in Davis v. Morton, 335 F. Supp. 1258 [2 ELR 20003] (D.N.M. 1971) which held that approval of lease sales on Indian lands did not constitute "major Federal action" under NEPA, and the Department of the Interior followed that decision. Davis was reversed one year later (Davis v. Morton, 469 F.2d 593 [2 ELR 20758] (10th Cir. 1972)) and the decisions cited above, supporting the Tenth Circuit, followed thereafter. Yet from 1972 until the present controversy arose, plaintiffs did not raise the issue of a possible violation of NEPA by virtue of the lease sale, and defendants accordingly plead laches.

The doctrine of laches applies to NEPA cases (see, e.g., Save Our Wetlands, Inc. v. U.S. Army Corps of Engineers, 549 F.2d 1021, 1026 [7 ELR 20353] (5th Cir. 1977)), as to other types of litigation, and one element of laches in the NEPA context, as in others, is the length of the delay. Save Our Wetlands, Inc. v. U.S. Army Corps of Engineers, supra (two and one-half years); Organizations United for Ecology v. Bell, 446 F. Supp. 535, 547 [8 ELR 20556] (M.D. Pa. 1978) (three years); Dalsis v. Hills, 424 F. Supp. 784, 788 [7 ELR 20256] (W.D.N.Y. 1976) (two and one-half years); Smith v. Schlesinger, 371 F. Supp. 559 [4 ELR 20473] (C.D. Cal. 1974) (seven and one-half months). The delay here, as noted, was unusually long by any standard — seven years.

That delay was also unreasonable. The dividual plaintiffs signed the leases and thus they knew of them even before they were approved by the Department of the Interior.²⁷ To be sure, the organizational plaintiff did not have actual knowledge of the facts until much later. However, as defendants correctly point out, the Friends of the Earth is an international organization with a deep and well-defined interest in environmental matters and extensive resources. Such a group cannot avoid the laches problem for the plaintiffs by the simple expedient of involving itself in litigation at a late stage. See Sierra Club v. Cavanaugh, 447 F. Supp. 427 430 [8 ELR 20472] (D.S.D. 1978). Thus, the unreasonableness of the delay must be attributed to all the plaintiffs.

Finally, defendants have suffered substantial prejudice as a result of the delay. Mobil has expended more than $19 million on exploration in the Crownpoint area, including almost $3 million [9 ELR 20695] on the lease on which the in situ project is located, all in reliance on the validity of the lease. See Sierra Club v. Cavanaugh, supra; Friends of Yosemite v. Frizzell, 420 F. Supp. 390, 397 [7 ELR 20087] (N.D. Cal. 1976).²⁸ The leases expire in 1982 unless mining operations are begun prior to that time. If the individual plaintiffs are successful in halting the project until the expiration of the leases as a result of this litigation and the inevitably lengthy controversies surrounding the drafting of an environmental impact statement, they will be able to negotiate new leases at that time on the basis of the uranium Mobil discovered at enormous expense. Equity will not permit NEPA to be used as a means of enrichment in this manner. See Organizations United for Ecology v. Bell, 446 F. Supp. 535, 547-53 [8 ELR 20556] (M.D. Pa. 1978); Centerview/Glen AvalonHomeowners Ass'n v. Brinnegar, 367 F. Supp. 633, 639-40 (C.D. Cal. 1973); Shiffler v. Schlesinger, 548 F.2d 96, 104 [7 ELR 20127] (3d Cir. 1976); Sworob v. Harris, 451 F. Supp. 96, 101-02 (E.D. Pa. 1978).

Beyond that, it appears that the government is presently weighing the actual environmental impacts of the in situ project in a variety of ways — through the environmental assessment of the in situ project itself, the draft environmental impact statement of uranium mining for the Crownpoint area, and by other means (see 9 ELR 20694 supra). The environmental impact of the lease sales is necessarily subsumed in these efforts, and the failure to prepare an EIS at the time of the lease sale is thus effectively being cured. To halt all activities in the area for sevveral years because seven years ago the government, acting in good faith, failed to prepare an environmental impact statement for the precise area of the lease sales — and even though the in situ project does not, by itself, require an EIS — would not only be exalt form over substance but would be a wholly inappropriate exercise of the court's equitable powers. See Cady v. Morton, supra, 527 F.2d at 798 n.12; State of Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978).

The parties devote the bulk of their arguments to the third issue — whether a regional environmental impact statement should have been prepared. In practical terms, that issue may be the most important, for if plaintiffs are correct on that question, uranium exploration and mining activity will have to be halted not merely on the in situ project but in the entire San Juan Basin and possibly beyond, and it will thus, as noted supra, effectivelyend or delay almost half of the nation's uranium production and jeopardize the exploitation to three-fifths of its uranium reserves.²⁹ While that issue is thus of the most far-reaching practical significance, in legal terms it is more easily disposed of, for it appears to have been largely settled by the Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976). Although there are some factual differences between that case and this³⁰ — differences which plaintiffs assert call for a different result — in my view the holding of Kleppe is applicable and controlling here.

The two cases are factually comparable in many ways, this case involving the development of uranium in the San Juan Basin, Kleppe the development of coal in the Northern Great Plains Region. There, as here, it was claimed that a regional EIS was required, and indeed the court of appeals for this circuit held with the plaintiffs on that issue. Sierra Club v. Morton, 514 F.2d 856 [5 ELR 20463] (D.C. Cir. 1975). However, the Supreme Court reversed, laying down precise guidelines with respect to the necessity for regional environmental impact statements. In essence, the Court held that such environmental impact statements are required in two and only two instances: (1) when there is a comprehensive federal plan for the development of a region, and (2) when various federal actions in a region have cumulative or synergistic environmental impacts on a region.

No comprehensive federal plan for the development of the San Juan Basin region exists, and plaintiffs can therefore prevail only if it is found that a number of federal actions in the region have such a cumulative or synergistic effect that a regional EIS is required. Plaintiffs argue in this regard that the following federal actions taken or planned since 1970 in the San Juan Basin Region must be considered as cumulative or synergistic: lease sales by the Bureau of Indian Affairs; approval by the United States Geological Survey of a number of exploration plans; acquisition of legal or equitable interests to yellowcake production enterprises by the Tennessee Valley Authority; approval by the Environmental Protection Agency of national pollution discharge elimination systems; approval by the Department of the Interior of uranium and reclamation plans and approval by the same department of prospecting permits leases and rights-of-way; studies by the Department of Energy concerning yellowcake production; and delegation by the Nuclear Energy Regulatory Commission to the State of New Mexico of the power to license various yellowcake production facilities.³¹

The number and variety of these actions appears impressive at first blush, but much less so on closer examination. In the first place, may of plaintiffs' listings are overstated both with respect to the quantity and the quality of the actions.³² Beyond that, these actions must be considered in the context of both space and time.³³ The area involved is larger than the State of West Virginia; the period involved thus far is nine years, and if the projections with respect to the various proposed actions are taken into account, it will amount to almost 30 years. These two facts alone raise a quesion whether all of them can be regarded as so related that they are cumulative or synergistic within the meaning of Kleppe. Widely scattered actions by six different federal agencies with different statutory programs and purposes taken or planned during a 30-year span, without any conscious overall planning, do not necessarily have that character. The Supreme Court emphasized that NEPA "may require a comprehensive impact statement in certain situations where several proposed actions are pending at the same time" (427 U.S. at 409) and that "when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together" (427 U.S. at 410) (emphasis added). At a minimum, many more facts must be known before a confident answer can be supplied on the question of whether this is a situation calling for "comprehensive consideration of pending proposals" that are so "'related' as to require their analysis in a single comprehensive impact statement" (427 U.S. at 410).

It is presumably for that reason, among others, that the Court stated in Kleppe that the determinatio of a region, if any, with respect to which a comprehensive treatment of environmental impacts is necessary, requires (427 U.S. at 412-14):

. . . a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies . . . [and that the] determination of the extent and effect of the these factors and particularly identification of the georgraphic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.³⁴

[9 ELR 20696]

The basis for that conclusion is obvious. Again, as the Court explained (427 U.S. at 401-02):

In the absence of a proposal for a regional plan of development, there is nothing that could be the subject of the analysis envisioned by the statute for an impact statement. Section 102(2)(C) requires that an impact statement contain, in essence, a detailed statement of the expected adverse environmental consequences of an action, the resource commitments involved in it, and the alternatives to it. Absent an overall plan for regional development, it is impossible to predict the level of coal-related activity that will occur in the region identified by respondents, and thus impossible to analyze the environmental consequences and the resources commitments involved in, and the alternatives to, such activity. A regional plan would define fairly precisely the scope and limits of the proposed development of the region. Where no such plan exists, any attempt to produce an impact statement would be little more than a study along the lines of .. . [an Interior Department study of coal mining activities in the region], containing estimates of potential development and attendant environmental impact statement of the type envisioned by NEPA. [Footnotes omitted.]

The present case illustrates the soundness of that reasoning. Plaintiffs argue that cumulative impacts from uranium mining occur in the "San Juan Basin" region, as they define it (Memorandum, p. 2 n.2), but they also describe a number of different geographic territories in which impacts are allegedly felt cumulatively. Thus, it is suggested that the appropriate region for measuring cumulative effects would be (1) the San Juan Basin as a whole (see, e.g., Memorandum, pp. 39-42); (2) the "Grants Uranium Belt" (Id. at 13, 23, 29); (3) "northwestern New Mexico" (Id. at 14); (4) the Westwater Canyon Aquifer (Id. at 24-25, 40-41); (5) the Town of Crownpoint (Id. at 24-26); (6) New Mexico as a whole (Id. at 33); and (7) Indian tribal lands (Id. at 43-46). These territories are by no means congruent.³⁵

Thus, the appropriate regions in which to consider cumulative impacts from uranium mining may be larger or smaller than the San Juan Basin. The government is presently Basin (San Juan Basin Regional Uranium Study, or SJBRUS)³⁶ in order to determine whether such development calls for an EIS, and if so, for what region. When that study is completed, a determination can be made whether, depending upon the outcome, a decision not to prepare an EIS or to prepare an EIS on a different regional basis than envisioned by plaintiffs is unreasonable or arbitrary. But, bearing in mind that northwestern New Mexico is and for a substantial period of time has been a heavily mined coal and uranium region, there is nothing about the in situ project that is so substantively significant³⁷ that the law must be deemed to mandate that, absent a regional EIS now, its operation must be enjoined. In short, plaintiffs have wholly failed to provide a basis for a determination by this court that the failure thus far to prepare a regional EIS for the San Juan Basin region was arbitrary or unreasonable (Texas Committee On Natural Resources v. Bergland, 573 F.2d 201 [8 ELR 20445] (5th Cir. 1978))³⁸ or was not "based on a consideration of the relevant factors" or constituted "a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1970).

Even if it be assumed, arguendo, that a regional EIS was required it would not help plaintiffs on the motion for preliminary injunction. The Supreme Court made very clear in Kleppe that (427 U.S. at 407-08 n.16):

Even had the Court of Appeals determined that a regional impact statement was due at that moment, it still would have erred in enjoining approval of the four mining plans unless it had made a finding that the impact statement covering them inadequately analyzed the environmental impacts of, and the alternatives to, their approval. So long as the statement covering them was adequate, there would have been no reason to enjoin their approval pending preparation of a broader regional statement; that broader statement, when prepared, simply would have taken into consideration the regional environmental effects of the four mining plans once they were in operation, in determining the permissibility of further coal-related operations in the region.

In other words, as long as the environmental treatment of the in situ project was adequate under NEPA, it would not matter even if — contrary to the court's conclusion herein — a regional EIS would have been required for the San Juan Basin (or indeed for some other region). The reason for that conclusion is again expressed in Kleppe. As the Court said (427 U.S. at 414-15 n.26):

Nor is it necessary that petitioners always complete a comprehensive impact statement on all proposed actions in an appropriate region before approving any of the projects. As petitioners have emphasized, and respondents have not disputed, approval of one lease or mining plan does not commit the Secretary to approval of any others; nor, apparently, do single approvals by the other petitioners commit them to subsequent approvals. Thus, an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals.³⁹

For the reasons stated, the court finds that the likelihood that plaintiffs will succeed on the merits is minimal. What remains to be considered are the factors of relative injury to plaintiffs, to defendants, to third parties, and to the public as a consequence of a grant or denial of the motion for preliminary injunction.

Plaintiffs' claims of irreparable injury relate to direct physical harm to the environment, the commitment of resources to the in situ project, and denial of their legal rights which NEPA is designed to protect. As the discussion in Part II supra shows, the likelihood that cognizable injury to the environment will occur as a result of the pilot project is slight. As for the commitment of additional resources, it is relatively small compared to what Mobil and others have already committed, and if, contrary to present expectations, plaintiffs should ultimately prevail on the merits, there is no reason why the project could not as easily be halted then as now. And in the present context, at least, a claimed violation of NEPA rights alone is insufficient to overcome the other considerations. See State of Alaska v. Andrus, supra; New York v. Nuclear Regulatory Commission, 550 F.2d 745, 753-56 [7 ELR 20203]; (2d Cir. 1977) Concerned About Trident v. Rumsfeld, 555 F.2d 797, 830 [6 ELR 20787] (D.C. Cir. 1977).

Injury to defendants is likewise adequately discussed above, and there is no need to repeat that discussion here. However, it is appropriate to consider the question of injury to third parties and to the public interest.

[9 ELR 20697]

Both in their principal brief and in their reply brief, plaintiffs' discussion of the reasons why the public interest might favor the issuance of preliminary injunction is devoted entirely to the proposition that, since Congress enacted NEPA, the public interest is served by compliance with NEPA. See Memorandum, p. 86, Reply Memorandum, pp. 62-64.⁴⁰ That much is certainly true, but it does not represent the entire picture.

For example, as some of the intervenors pointed out, the Navajos have one of the lowest median incomes of any identifiable ethnic group, amounting to approximately 28 percent of the national average, and unemployment among them is around 40 percent. Should uranium mining proceed, not only would many Navajos receive substantial royalty payments, but they would have the right of first refusal on between 80 to 100 percent of mine and mill operating jobs. Indeed, it is expected that Navajo employment in connection with mining is expected to rise from 196 in 1975 to over 3,000 by 1990.

It is also significant that solution mining would seem to be far preferable to underground mining in socioeconomic terms, for it would eliminate much of the dangerous⁴¹ and backbreaking labor deep in the earth, and provide instead for more humane above-ground employment with similar end results.⁴² Whatever may be the legitimate priorities of the organizational plaintiff with respect to these issues, it is doubtful that the social or economic interests of the people on the ground, or the public interest, would be served by a halt of this technology during its relatively modest experimental stage.

Plaintiffs suggest that if all development were enjoined until various environmental impact statements are prepared "this should not take more than approximately a year to complete" (Reply Memorandum, p. 62), and that domestic sources of uranium are adequate for supplying the nation's nuclear generating plants through 1985. Intervenors, on the other hand, speculate that it is likely to take two to three years to prepare a regional EIS (Brief of United Nuclear Corporation, p. 4). Whatever be the correct projection, the margin is clearly a precarious one, and the possibility that a significant portion of the nation's power plants may be shut down for lack of fuel⁴³ must obviously be accorded substantial weight on any balancing of relative injuries and equities. See Concerned About Trident v. Rumsfeld, 555 F.2d 817, 831 [6 ELR 20787] (D.C. Cir. 1977) (Leventhal, J. concurring); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 [8 ELR 20065] (9th Cir. 1977).

A unanimous Supreme Court said in Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 557-58:

Nuclear energy may some day be a cheap safe source of power or it may not, but Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action.

NEPA represents a congressional judgment that legitimate environmental concerns must be addressed and the appropriate procedures be followed in the case of major federal actions which may have a significant impact on the human environment. However, in terms of the public interest, NEPA concerns are entitled to priority only to the extent that they are not insubstantial. When consideration is given, in a public interest context, to the deference that should be paid to less weighty environmental concerns, it is appropriate also to consider whether the effect of a NEPA injunction would be to vitiate other congressionally mandated policies. Notwithstanding the length and detail of plaintiffs' arguments, when all is said and done, the conclusion that emerges is not that actions in violation of NEPA have been taken or are imminent, but that plaintiffs would prefer it if the production of uranium were stopped.⁴⁴ But that, as the Supreme Court said, is a matter for the Congress, not the courts.

For the reasons stated, plaintiffs' motion for a preliminary injunction will be denied.

1. Initially, Mobil's representations in that regard were limited by a July 13, 1979, deadline, but that limitation has now been formally rescinded.

2. The motion for preliminary injunctions has been filed, several of the parties have filed oppositions, and the remaining oppositions are due on June 29, 1979. See infra.

3. Their claim in this regard has been made so late and so suddenly that it may be subjectively no more than an afterthought or a rationalization for actions taken for other reasons. Nevertheless, substantively it is not entirely without merit.

1. The San Juan Basin is located in northwestern New Mexico and in protions of Colorado and Utah.

2. Yellowcake is the first stage in the manufacture of the fuel used by most nuclear power plants.

3. On this motion, the court will, of course, apply the standards of Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958), and Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977).

4. Plaintiffs are Friends of the Earth (an international environmental organization) and 72 individual Navajo Indians residing in the area.

5. The federal defendants are the Department of the Interior, Department of Energy, Department of Agriculture, Environmental Protection Agency, Nuclear Regulatory Commission, and Tennessee Valley Authority.

6. Mobil Oil Corporation has intervened as a defendant. The following private companies also having an interest in mining and milling in the San Juan Basin area have likewise been allowed to intervene as defendants: United Nuclear Corporation, Kerr-McGee Nuclear Corporation, Gulf Oil Corporation, Exxon Corporation, Phillips Uranium Corporation, and Continental Oil Company.

7. The project is scheduled to be in operation for only 22 months.

8. While uranium leaching is new to that area, it has been employed elsewhere.

9. The solution consists of an oxidant (hydrogen peroxide) which oxidizes the reduced uranium in the ore zone; bicarbonate which reacts with the oxidized uranium to form a water soluble uranium carbonate compound; and sodium hydroxide which adjusts the pH of the water.

10. The lease was signed by BIA on behalf of one Sarah McCray, a Navajo Indian. While Ms. McCray contends that the lease was improperly approved by BIA and that Mobil violated the terms of the lease, these issues have been decided against her by an administrative law judge in an Interior Department proceeding, and there is no basis for disturbing that determination.

11. Following the denial of a motion for temporary restraining order, Mobil agreed not to begin operations during consideration by the court of the present motion.

12. There does not appear to be any significant practical difference between the two standards, nor are they in conflict with the doctrine that the burden is on the government to demonstrate that any environmental impacts are not significant. Maryland National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029 [3 ELR 20702] (D.C. Cir. 1973).

13. The proposed injection rate for the pilot project is 73 gallons per minute; the production rate will be 75 gallons per minute.

14. Plaintiffs contend that the leachate could reach Crownpoint in 65 years or conceivably even earlier.

15. Restoration to baseline levels is not possible because several constituent chemicals are removed by the process.

16. Plaintiffs' suggestions that the Texas tests are either not reliable or that their results were not satisfactory are not supported by the record.

17. Because it would be in an enclosure, even that small amount would be quickly dispersed.

18. The federal defendants aptly point out in their brief (p. 26 note) that plaintiffs' complaint alleges (P130(f)) that the final environmental statement for a conventional underground uranium mining project in the area gave insufficient consideration to the advantages of the in situ leaching alternative; yet here plaintiffs object to a pilot in situ leaching program which is designed to establish the feasibility of that method of producing uranium.

19. The ALJ also ruled against Ms. McCray's position with respect to the water quality issue.None of the other issues was raised in that forum.

20. See Parklane Hosiery Co., Inc. v. Shore, 47 U.S.L.W. 4079 (Jan. 9, 1979); Blonder-Tongue Laboratories, Inc. v. University of Ill. Foun., 402 U.S. 313, 328-29 (1971).

21. On this issue, too, plaintiffs fail to acknowledge that the impacts they complain about are far less significant than would land use impacts resulting from conventional, underground uranium mining. While NEPA applies to all federal actions having substantial impact on the environment, it is not without significance that a particular method of proceeding toward a legally valid objective has less of an impact than a different, more traditional method.

22. It may be that individual Navajos believe that to disturb any plant is to destroy a living spirit; but this would hardly be a valid basis for concluding that federal law prohibits mining, construction, agriculture, and cattle-raising in the areas where Navajos reside.

23. Plaintiffs also claim that the in situ project is controversial, suggesting that "controversy, as the term is used in this context, refers only to a dispute over the nature or extent of the environmental impacts of a proposed action" (Reply Memorandum, p. 48). However, it does not appear that a "substantial dispute" exists as to the size, nature, or effect of the in situ project (see Hanly v. Kleindienst, 471 F.2d 823 [2 ELR 20717] [2d Cir. 1972]. Moreover, a "controversy" does not exist within the meaning of the law, merely because an opponent of a project raises environmental questions. See Fund for Animals v. Frizzell, 530 F.2d 982, 988-89 n.15 [6 ELR 20188, 20191 n.15] (D.C. Cir. 1975). That kind of bootstrap reasoning would permit such an opponent to sidestep his burdens under the law simply by declaring the existence of a controversy. Although the in situ project was publicized, controversy was almost nonexistent. As the EA stated (Exh. D-2 at p. 156), "public comment and interest in this project has been suprisingly low . . . [and no] adverse comments . . . have been received from . . . Navajos . . . ."

24. Plaintiffs argue that the measures taken by the government and by Mobil "cannot ensure that no impacts will occur" (Reply Memorandum, p. 36). Defendants are not required to meet such an impossible standard. See Hanly v. Kleindienst, supra, 471 F.2d at 830-31.

25. Plaintiffs concede that the EA "constitutes en examination in minute detail of the possible impacts of the project" (Memorandum, p. 36).

26. While an EA cannot take the place of an EIS where the latter is required, it is not without significance that the EA is longer and more detailed than the guidelines [that] the Council on Environmental Quality recommend for an EIS. 40 C.F.R. § 1502.7.

27. Sarah McCray's contention that she did not know of the leases until 1978 was properly rejected by the ALJ as incredible. She signed a lease with Mobil in April 1974.

28. Third parties, too, have been injured as a consequence of plaintiffs' delay. Rents have been paid to the Indian allottees for seven years and these allottees may legitimately expect that these payments will continue for at least three additional years. An injunction would destroy that expectation and reliance.

29. The lease sale theory, discussed in Part III, supra, would have effects almost as dramatic, as the majority of federal lands leased for uranium mining were leased without either an EIS or an EA.

30. Plaintiffs here, unlike in Kleppe, have included a challenge to specific mining plans, and they have attempted to assert other factual differences (Reply Memorandum, p. 8 note), but none of them is of any significance.

31. Plaintiffs claim that additional actions are pending. However, according to the Department of the Interior, there are no pending uranium lease applications, uranium lease sales, supplemental uranium exploration plans, actions concerning radioactive sources material licenses, actions relating to uranium production goals, and no pending actions related to the construction, operation, or purchase of yellowcake production facilities.

32. Thus, plaintiffs claim that the Department of the Interior has approved 273 exploration plans, but only 47 of these are original approvals, the remainder being supplements or modifications. Similarly, although 402,826 acres of land have been offered for lease bidding (out of 17 million acres in the San Juan Basin), less than 2,400 scattered fractions of acres have suffered any surface disturbance. Again, plaintiffs claim that the Department of Agriculture approved or concurred in over some 83 uranium plans of operation covering an estimated 134,324 acres of the Cibola National Forest. In fact, the Department has approved no mining plans, and the acreage listed is that of the outer geographical boundaries of the activities, not the actual acreage disturbed. See generally, Brief of federal defendants, pp. 38-50.

33. Moreover, several of these actions are overlapping in the sense that they reflect activities of several agencies relating to a single project.

34. Plaintiffs argue that the Supreme Court meant to leave to federal agencies discretion only with respect to the area relevant to a regional EIS, but not with respect to the question whether a regional EIS should be prepared at all. It is impossible logically to separate one determination from the other. If the agencies have discretion to determine for what region an EIS is required, they must, of necessity, also have discretion to determine that there is no region with sufficient cumulative impacts to require an EIS. See Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 211 (5th Cir. 1978).

35. Plaintiffs' exhibits suggest still other possibilities, such as four distinct mining areas within the "Grants Uranium Belt" (P. Exh. 30); two groups of uranium mines of northwest New Mexico joined with much larger areas in adjacent states, designated as the "Colorado Plateau" and "Colorado and the Southern Rockies" (P. Exh. 24); or five "uranium resource regions," including the two listed by the NRC and a "Southern Basin Range," a "Southeastern Basin and Range," and a "Southern Plains" region (P. Exh. 44).

36. A regional EIS is not required simply because Interior is engaged in the SJBRUS study. Kleppe v. Sierra Club, supra, 427 U.S. at 413.

37. Except for its potentially beneficial effect of reducing the dangers and costs when compared with conventional uranium mining.

38. This is the principal post-Kleppe decision on regional EIS.

39. To be bure, the mining plans in Kleppe had received full environmental impact statements, while the in situ project at issue here has received only an environmental assessment. But since nothing more than an EA was necessary (see Part II supra), this is a distinction without a difference. The Kleppe projects appropriately required a massive, six-volume impact statement, while the Mobil in situ project is severely limited both in time and impact.

40. Plaintiffs do, however, attempt to answer the public interest arguments made by defendants and the intervenors.

41. Underground mining dangers result both from the insecure location and the presence of significant radiation exposure.

42. Additionally, solution mining uses far less water than underground mining; it avoids environmental damage resulting from the waste deposited by underground mining; it is less costly; and it offers the potential for the recovery of more uranium.

43. Nuclear energy now supplies 12.5 percent of the nation's electricity (D. Exh. 8, vol. 2, p. 135).

44. See, e.g., notes 18, 21, 41, 42.