*1 also, See 514 F.2d 856. et al. CLUB SIERRA ANDRUS, Secretary of the Interi D.

Cecil Lynn, T. Director of Of

or and James al., Management Budget, et

fice of

Appellants.

No. 75-1871. of Appeals, States

United Court Circuit.

District of Columbia

Argued Dec. 15, 1978. May

Decided Ill, place Safety 301(c)(3), Mine Pub.L. No. before the Federal tit. 91 Stat. Health Review Commission. See Federal Mine Safety Health Act of Amendments *2 Appeal from the United States District Court for the (D.C. District of Columbia 74-1017). Civil Taft, Gen., Peter R. Atty. Asst. Dept. of Justice, C., Washington, D. with Ray whom Zagone, Wine, mond N. L. Mark Dirk D. Snel, Attys., Dept. of Justice and Steven Gottlieb, Counsel, Asst. Gen. Office of Man agement Budget, C., Washington, D. brief, were on the appellants. Also Clark, Edmund B. Atty., Justice, Dept. of C., Washington, D. entered an appearance appellant. Terris, C., Washington, program D. wit to reevaluate the Bruce J. h Hostetler, change a drastic of circumstances Washington, affecting D. Zona F. whom operation program. C., brief, appellees. was on We affirm the district court’s other de- BAZELON, Judge, Chief Before claratory ruling that the Office of Manage- *3 MacKINNON, and Circuit LEVENTHAL Budget (OMB) ment and is required to de- Judges. velop procedures to fulfill its NEPA obliga- tions in Budget process. connection MacKINNON, by Circuit Opinion filed concurring part dissenting and Judge, I. BACKGROUND part. Refuge Sys- A. The National Wildlife by LEVEN for the Court filed Opinion tem THAL, Judge. Circuit Refuge The National Wildlife System LEVENTHAL, Judge: Circuit refuges consists of more than 350 contain- ing more than 30 million acres in 49 of the in this case is legal central issue The states. The primary purposes of the the Nation- on what occasions whether and preserve to endangered species NWRS are (NEPA) Act Policy al Environmental and to sustain populations migratory of an environmen- prepare quires birds, waterfowl, particularly by maintain- (EIS) to accompany statement tal ing intact a diverse network of their natu- budget request operation for the its annual secondary purpose ral habitats. A of the having significant environ- program of a System provide is to for its educational and consequences. mental observation, (study, recreational use and particular program that occasioned The hunting) by people. is the National Wildlife the lawsuit The System is administered the Ser- (sometimes System System, referred to as according vice provisions of several NWRS). System is administered the refuge statutes.1 Much of land was the Interior’s Fish Department of and acquired during the 1930’s. After period a (sometimes referred to as Wildlife Service 50’s, growth during little the 1940’sand Service, FWS). System enlarged during has been suit, the commencement of this Since present, particularly 60’s and to the in the programmatic environ- prepared has FWS (There area of wild rivers and of wetlands. program which mental statement on the recently increasing recognition been for the operation covers NWRS next preservation the contribution to the of im- centering projection on a of a years, ten portant wetlands, wildlife made funding. level of No chal- roughly constant have been rapidly depleted.) During this adequacy made to the of this lenge has been period growth, statutory of territorial new Rather, obtained, plaintiffs and now EIS. (such mandates Endangered Species as the of, the seek affirmance district court’s de- 1531-1543), Act of 16 U.S.C. and §§ claratory ruling adequate that an public NWRS, increased use of the the re- existing required circumstances is then sources devoted to staff and maintain the request. reject We budget each annual Refuge System kept have up with the that the per position se and hold statement growth.2 rate territorial Between 1973 its NEPA by the Service satisfies prepared there was 7% decrease in staff- any future obligations, subject ing, decision while the number of field stations in- Statement, Operation significant are: 2. Final 1. The most of these Environmental Refuge System, the National Wildlife U.S. Fish Wildlife Act of Fish and Coordination Service, Department and Wildlife of the Interi- seq.; 16 U.S.C. 661 et Fish and Wildlife Act or, November, through at 1-8 1-9 [herein- seq.; Migratory 16 U.S.C. 742a et 18-19], after FES at Act, seq.; Bird Conservation 16 U.S.C. 715 et Species Endangered Act of seq. 1531 et U.S.C. protection vital of the environment so has led to This percent.3 by 10 creased scope proposal on the the annual million) backlog of rehabili- ($83 substantial operation per “significantly its se nature of construc- work, as unfulfilled as well tation the human environ- quality g., e. replacement, work, affect[s] new tion ment.” roads, structures, and build- control water plan policy decision Given ings.4 section further contend Plaintiffs (approx- expenditure total roughly constant to devel- 102(2)(B) requires of NEPA6 OMB dollars), in 1974 million imately $43 to assure consideration op procedures increasing strategy of on a focuses FWS proc- budget factors in the environmental pri- in its the NWRS effectiveness ess, of which including identification task, gradually re- while mary conservation significant have public. use ducing its direct what consequences the en- (FES) analyzes statement Service’s branch submit- agencies of the executive *4 proposed of this consequences vironmental requests to OMB. ting these alternatives, mitigating meas- strategy, Court Decision C. District ures. granted summary The district court

B. Plaintiffs’ Contentions plaintiffs7 the on the basis of judgment for organ- environmental are three concerning budget Plaintiffs per argument pro the se will be discussed standing Their major izations. of a environmen posals operation for argu- two subsequently. They advance such as the NWRS. court program tal 102(2)(C) of NEPA5 ob- that section guidelines implementing ments on the relied on prepare by the Council on Environ ligates the Service NEPA issued System: the budget request (CEQ). guidelines for These Quality each annual mental appropria to cut (a) past present proposals “requests include explicitly that “proposals are of “action” for operations tions” within the definition down on NWRS af- The court also relied on significantly purposes.8 . legislation in connection with requiring environ- an EIS quality of the human cases fecting the to construct (b) the the . . . NWRS ment proce- identify develop methods 3. Id. at 18. dures, the on in consultation with Council by Quality established sub- Environmental 4. Id. at 19. chapter, chapter which will insure II of this presently unquantified environmental 4332(2)(C), 102(2)(C), 42 U.S.C. § Section 5. appropri- given amenities and values provides pertinent part: in decisionmaking along ate consideration in that, directs authorizes and with economic and technical considerations. possible: to the fullest extent rects all Section shall— be made available the major port through provided Act], processes. environmental States Code Copies (C) quality on all include ^[*] ^[*] ^[*] and shall Federal actions 102(2)(B), proposals agencies of such statement of the human ^[*] ^[*] ^[*] section [the of the federal Government impact every existing of the Federal Government accompany 42 U.S.C. § ^[*] ^[*] ^[*] Freedom ... 552 of title recommendation significantly affecting statement]. ^[*] ^[*] ^[*] environment, agency to the of Information 4332(2)(B) ^[*] ^[*] ^[*] the and other public proposal ^[*] ^[*] ^[*] review United or re- shall a[n to: di- 7. Sierra Club v. Morton which lines, oversee F.Supp. entitled to considerable Fund v. [SIPI], tists’ Institute for Public Information v. AEC uge National Wildlife relating appropriations. CEQ “Actions” System], issued provides: Recommendations was at implementation 3(h) (1970), TV A established include but are not by authority legislation including (1973); [Tellico citing F.Supp. Refuge System, supra, 3 C.F.R. Environmental Defense 40 C.F.R. § Dam], [National of NEPA. weight. or favorable 395, 404, of Executive Order NEPA in 468 F.2d (D.D.C.1975). Wildlife Ref- E. 1500.5(a)(1) limited (1974), Its 481 F.2d g. part reports guide- Scien- to: proof their failure to adduce specific project.9 injury otherwise initiate programmatic of the took note plaintiffs’ The court the face of defendants’ denial of being prepared statement environmental standing disputed and assertion of a factual was that since it defendants, held but injury.12 issue their alleged as to Plaintiffs long range goals of directed complaint in their their members use re NWRS, satisfy not the NEPA it would Refuge System and are affected direct analysis specifically quirement of an proposal con- “finely action in a proposed to the ed operation cerning System.13 Al- Accordingly, district tuned” manner.10 plaintiffs assert their ternatively, or- declaratory re plaintiffs granted court ganizational disseminating interests were in violation the defendants lief that information NEPA requires pro- NEPA, required EIS was that an posing agency compile pro- and disclose NWRS, and for the proposal annual standing SIPI, vide under note supra that OMB was n. 29. F.2d at 1087 These allegations were proce- develop methods formal supported by plaintiffs’ affidavits will, Of- respect to the dures which summary judgment. motion for pro- actions and fice’s own administrative those actions identify posals, There is little doubt in our mind that to be statements quiring environmental some considered, plaintiffs’ hundreds of and disseminated.11 thousands prepared,

nature-oriented members use the Refuge *5 STANDING II. System, so that at least one of them could thereby satisfy the “minimal” summary standing challenge the re The defendants plaintiffs quirements to in view of of Sierra Club judgment granted v. Morton [Min 1972); Planning (6th standing 12. “Plaintiffs have Greene Co. no 1178 Cir. to maintain this 412, Cir.), FPC, (2d cert. Refuge System, F.2d 421 action.” National Board v. 455 Wildlife su- 849, denied, 56, pra, (Oct. 11, 90 93 S.Ct. 34 L.Ed.2d 1974), 409 U.S. at 1 Answer J.A. 22. “In (1972); v. Morton Great prevail Sierra [Northern Club order to on summary their motion [for 22, 20, Coal], U.S.App.D.C. 37 Plains 35 n. judgment], plaintiffs 169 must demonstrate . 856, 22, 24, 871 n. 873 n. 24 n. 514 F.2d significant have there been reductions in Kleppe grounds sub. nom. v. rev’d on other refuge operations they and that have been in- 2718, Club, 390, 49 Sierra U.S. 96 427 S.Ct. jured. None of proved.” these facts have been L.Ed.2d 576 Id., Defendants’ Statement of Genuine Issues at Department of is in The Interior’s Manual 8, (Apr. 1975) 1 J.A. 65. Guidelines, stating: accord with the CEQ following decid- The criteria are to be used in Plaintiffs, Club, the Sierra the National ing proposed requires the whether a action Association, Parks and Conservation and the preparation an environmental statement: Council, Natural Resources Defense are envi- Types con- Federal actions to be A. organizations ronmental-conservation include, but are not limited sidered to: memberships 200,- combined approximately reports or favorable Recommendations Typical standing allegations of the in the relating legislation, includ- to the complaint is following: the ing appropriations. Plaintiff Natural Resources Defense Coun- 516.5, Department Interior Manual 36 of the cil, (NRDC) Inc. suing is on behalf of itself 2, 1971). Fed.Reg. (Oct. 19344 Many and its members. of NRDC’s members System, Refuge supra, 395 9. National Wildlife use the Refuges National Wildlife for recrea- 1182, citing F.Supp. Environmental Defense at purposes, tional and other affected Dam], Fund v. TVA 468 F.2d [Tellico by impacts refug- the environmental these on (6th 1972) and Institute for Cir. Scientists’ proposals legislation es from the and oth- AEC, v. Public Information major er federal actions described this (1973) (development of the 481 F.2d 1079 complaint. They right have a under NEPA to reactor). liquid breeder metal fast assess and comment on the environmental of, to, impacts propos- and alternatives these System, supra, 395 10. National Wildlife by right being als. This denied defendants’ F.Supp. at 1191. responsibility failure to fulfill their under supra, NEPA. Refuge System, 11. National Wildlife Id., 5, 1974), Complaint (July (D.D.C. J.A. 11. Order at June Civ.No. 1975), J.A. 92. However, standing. to avoid nial of 727, 734, 92 S.Ct. King], 405 U.S. eral estop United States implication of foreclosure possible (1972) and 31 L.Ed.2d 669, 688-90, it clear that on the remand pel, we make I], 412 U.S. SCRAP [SCRAP genu is a proceedings, further if there (1973).14 Plain L.Ed.2d S.Ct. by Refuges plain as to use of the to that ine issue affidavits specific file not tiffs did members, hand, may raise it in hardly can tiffs’ defendants one the other On effect. proceedings.16 sharply appropriate drawn was issue say that the their statement pleadings. defendants’ judg summary opposing issues genuine NEPA AND THE BUDGET III. plaintiffs denied that

ment, the defendants PROCESS of the by operation injured” had “been .Ref Appli- NEPA Absolute Positions on A. concerning budget decisions uge System or cability However, was point System.15 position simple plaintiffs’ denial context of defendants’ made in the “all logical. requires plans there were allegation prepare an EIS Federal Government” the NWRS with con funding of reduce or re accompany “every recommendation Refuge System. impairment of sequent proposals port specifically not did pleadings Defendants’ quality significantly affecting plaintiffs’ proposition contest guide human environment.”17 EIS Sys affected and are members use CEQ, body established lines of operate proposes and how the FWS tem statute, implement NEPA to defines per se it, underpinning which was the subject requirement: to the an “action” court. by the district accepted argument are not “Actions” include but limited importance we do not minimize While to: issue is standing requirements, (1) Recommendations or favorable re- required a trial to disposition whether their ports relating legislation including A trial of fact. pertinent issues resolve general quests appropriations.18 de automatically *6 1079, 395, 29, 403 n. 481 F.2d 1087 n. 29 Great D.C. (1973). v. Morton [Northern 14. Sierra Club 20, 20, proposal legisla- Coal], U.S.App.D.C. n. 514 of a 34 In the case Plains 169 SIPI, 856, (1975), quasi-legislative on other n. 20 rev’d in F.2d 870 tion — Club, Kleppe agency grounds approval v. Sierra 427 sub. nom. in Jones —the or- another 390, 2718, (1976). getting 49 L.Ed.2d 576 ganization U.S. 96 S.Ct. has an interest the envi- proposal consequences of the in the ronmental System, supra, De- 15. National Wildlife legislature open the in aid of its and before at 1 Issues fendants’ Statement Genuine legislative process. participation in the The 12, 8, supra. 1975), (Apr. J.A. 65. See note legal question is interest arises whether this to maintain an action to enforce sufficient NEPA, v. TVA 16. Environmental Defense Fund [Telli- by the stat- in effect an interest created 1972). 1164, (6th Dam], 1172 468 F.2d Cir. co ute. primary purpose EIS in the scheme of the The compliance its man- standing NEPA is to assure with ground was simi- This alternative agencies proposing or ac- that supported date larly alleged not affidavits. but give to environmental due consideration standing proper tion plaintiffs’ and more Since However, im- the EIS also serves the factors. straightforward under the members’ use doc- informing portant other additional function King], v. Morton trine of Sierra Club [Mineral public parts government the and the 1361, of the 727, L.Ed.2d 92 S.Ct. 31 405 U.S. consequences of the decision. environmental anticipate (1972), not that it will be we do 636 Agency, Redevelopment Land Jones v. D.C. necessary pursue NEPA the “informational 502, 375, 366, 499 F.2d in this case. issue entitlement” Thus, organiza- (1974). an have held that we 4332(2)(C). 102(2)(C), 42 U.S.C. 17. Section concern with inform- tion with an institutional ing public the on matters its members and both 8, 1500.5(a). supra. See note 18. 40 C.F.R. public policy which fall within and decisions Supreme generally, Court has stated: More the statutory right to of NEPA has the concern statutory problem of agen- with a obliges faced the [w]hen which NEPA the information cy construction, great defer- this Court shows compile Institute in an EIS. Scientists’ given interpretation AEC, U.S.App. the statute the ence to v. for Public Information require- A prerequisite other of an EIS similar issue has The arisen in connection ment, the Freedom significantly action affect Information that the Act (FOIA), 5 U.S.C. and its environment, applicability given the been broad within the entities Executive Office of the reading obtaining in favor of benefits David, the President. In Soucie v. 145 U.S. instances envi- of an EIS in of borderline App.D.C. (1971), 448 F.2d 1067 without Thus, significance.19 according ronmental deciding whether the APA definition of plaintiffs, the an EIS is con- “agency” President, the includes we held budget proposal nection with the FWS’s the Office of Technology (OST) Science and opera- funding upcoming year’s the fiscal to be “agency” congressional based on great program of a tion of its understanding assigned role by the the NWRS.20 significance, reorganization plan in which was created and in position which its equated was to the the counter The defendants Budget Bureau.22 Congress added a defini- only an interme to OMB proposal FWS’s tion of “agency” in the 1974 FOIA amend- and that budget step process in the diate ments to include: Budget submitted the only the actual proposal considered a . or other establishment in the President could (in- executive branch the Government sub presidential legislation, cluding the Executive Office of Presi- possibly action be the earliest mission would dent) . deny Defendants triggering NEPA21 on OMB in any obligation imposes legislative history makes it clear that rely they Budget; preparation its Congress adopted the Soucie result. The budget process, confidentiality of the Report Conference states: 24; they claim see 31 U.S.C. §§ respect meaning With “agencies” are not and FWS OMB —either term “Executive Office of the President” of the Administrative meaning within intend conferees the result reached 551(1), or Act, under 5 U.S.C. § Procedure David, (C.A.D.C. Soucie v. F.2d 1067 as they acting advisers NEPA- —when 1971). interpreted term is to be not to the President and staff assistants including President’s immediate making Budget. in the personal his staff units Executive charged proposed budget with its when the [E]ven officer as, than, prior year’s budg- same or more administration. et, Tallman, proposal to increase 85 S.Ct. further v. 380 U.S. Udall provide, example, E. I. de additional See also duPont 13 L.Ed.2d 616 —to 112, 134-35, protect Train, adequately staff to wildlife more U.S. (1977). Nemours *7 increasing visitors, 965, principle or service numbers of to 204 This L.Ed.2d S.Ct. 51 deteriorating charged vitality increase rehabilitation of facili- as to full ties, purchase sys- passed objec- or to more lands implementing with the statutes significantly quality affects the protecting of the environment. tive tem — environment. Maryland-National Capital Planning 19. Park & Appellees Brief for at 34-35. Service, U.S.App. Postal Comm’n v. U. S. 1029, 158, 21. Aberdeen & Rockfish R. R. D.C. F.2d 1039-40 Co. v. SCRAP II], 289, 320-21, (1973). [SCRAP 422 U.S. 95 S.Ct. 2336, (1975). 45 L.Ed.2d argue 20. Plaintiffs David, 144, 22. Soucie v. System, by Wildlife National its (1971). 448 F.2d nature, size, very scope, and is itself vital By independent virtue of its function of eval- part protection of the of the environment. programs, uation federal the OST must Consequently, proposals financing annual regarded agency, subject as an to the APA programs System . necessari- and the Freedom of Information Act. ly significant upon have effects the environ- Id. 448 F.2d at 1075. ment. 552(e). 23. 5 U.S.C. § sole is to advise would have to accompany Office whose function every budget re- quest assist the President.24 for the annual operation of an envi- program, ronmental-conservation or indeed Budget is an Preparation of the aid to of an agency whose may activities have presi- an instrument of Congress as well as significant impact.27 environmental policymaking and control over the dential principle of reductio ad absurdum part bureaucracy. OMB has a statuto- executive the landscape of logic. Plaintiffs have not Budget, ry duty prepare addition suggested a limiting principle to logic. their management, to its multitudinous other co- put Plaintiffs have ordination, forward as an and administrative functions.25 alter- native an escape hatch that would Congress signified importance of OMB’s limit the requirement function, alleged instances of an power over and above its role aspect cutback in some advisor, activity, NWRS presidential it provided, when as in the level of NWRS staffing and main- also amendment in con- Senate tenance, leveling of total expenditure, and firmation of the Di- Deputy Director acquisition lack of of new refuges. Thus, rector of totally OMB.'26 OMB not exempt from the FOIA its definition of The difficulty of limitation still ob “agency.” equally We are convinced that Every tains. agency has limited resources exempt by OMB is not from definition and has to priorities establish among its Exactly NEPA. what NEPA requires of programs and activities within a program. budget process general OMB in the is not Some areas and functions given new presented on appeal and awaits OMB’s emphasis, others are reduced. Some of response to the district court’s declaratory decisions, these such as a decision to decline function, judgment that it is OMB’s at least expand the National System, Park instance, in the first to delineate the appro- great be of significance. priate scope obligation of a NEPA general, however, if there proposal is no meaningful. would be both feasible and change quo, the status there is in our view no “proposal legislation”

We now question turn to of what or “other ma jor annually Federal action” requires, occasionally, trigger duty un connection with der NEPA opera- prepare decisions about the an EIS.

tion of the NWRS. It would be absurd to require an every EIS on decision on management

B. Review Operations of NWRS land, of federal such as fluctuation in the (see logic-based Plaintiffs’ contention number of spotters. forest fire We know of accompanying note 20 and text supra) pushing no case NEPA to such extremes. logically leads to the conclusion that an EIS The cases point cited on this by the plain- S.Rep.No.93-1200, Cong., 24. 2d 93rd Sess. 15 crease (1974), Admin.News, Cong. p. 1974 U.S.Code & departments several or establishments. 6293. H.Rep.No.93- U.S.C. 16§ See also Cong., Appendix (1974); 93rd 2d Sess. There is in the Executive Office Cong. Admin.News, 1974, p. U.S.Code & Management President an Office of summary for a of OMB’s numerous other statu- Budget. There shall be in the Office a Di- tory duties. Director, Deputy rector and a both of whom President, appointed by shall be 25, supra, 31 U.S.C. § note amended *8 with the advice and consent of the Senate. 93-250, 2, (Mar. 1974). P.L. 1§ deputy perform The director shall such duties may designate, during as the director and include, g., ICC, 27. This would e. see incapacity absence or of the director or dur- II, supra, 320-21, 322-27, SCRAP 422 U.S. at ing vacancy a in the office of director he shall 2336; SEC, 95 S.Ct. and the see Natural Re Office, act as director. The under such rules SEC, sources F.Supp. Defense Council v. 389 regulations may pre- and as the President (D.D.C.1974); (D.D.C. 689 May Civ.No. 409-73 scribe, ghall prepare Budget, 19, 1977), 96,057 Fed.Sec.L.Rep. (June C.C.H. ¶ proposed supplemental deficiency appro- or 2, 1977). priations, authority and to this end shall have assemble, correlate, revise, reduce, or in-

903 management of a tions for continuance and of or construction initiation involve tiffs ongoing program. an resources.28 of federal or a sale project, new in connection an EIS requiring cases The the qualification We hasten to add pro- involve requests appropriations budg- NEPA have application those development requests accompany of a follow or et for construction posals agency’s painstaking ongoing review of an danger a of overburden- There is project.29 program. reading need is for a mandate too spreading its ing words, its pur- NEPA that harmonizes its analysis re- widely. The environmental Hence, the rule of poses, and reason. a rule of by the governed is by NEPA quired “proposal legislation,” for within determining the reason, held in we have 102(2)(C), applicable is not when the pro- to the alternatives of realistic scope routine, process budget appropriation the re- intensity action30 posed fully applicable request but is when the for requiring prepara- analysis.31 A rule quired budget approval appropriations is one on the annual an EIS tion of programmatic ushers in a considered every ongoing program virtually for quest following programmatic course a review. view, In our sec- NEPA. trivialize would A review of such a nature reflects choices “proposal” a for 102(2)(C) contemplates tion that should under NEPA be made in the significantly which taking new action pertinent of a full consideration of light quo, not for a routine the status changes consequences and alterna- appropria- budget approval request for tives.32 Club, 390, Group Kleepe v. 427 v. Sierra U.S. 96 S.Ct. g., Preservation E. National Forest 28. 1973) (exchange 2718, Butz, (9th preclude F.2d 49 L.Ed.2d 576 does not 485 408 Cir. land); private applicability Minneso- NEPA in national forest land this case. Its Butz, Group holding required v. 358 Interest Research ta Public that no EIS was was based on aff’d, (D.Minn.1973) F.Supp. finding program 498 F.2d 1314 584 that there was no to ana- (en banc) (timber (8th 1974) sales in lyze. Cir. Area), Boundary 541 F.2d 1292 Waters Canoe But there is no evidence in the record of an banc); 1976) (en (8th Affect- Businessmen Cir. proposal regional for an action of action a Yearly Severely By Plans v. D. Action C. ed City scope. (D.D.C.1972) (re- Council, F.Supp. 793 339 ^ zoning permit construction of commer- tract to proposal regional the absence a a building). cial plan development, nothing there is subject analysis could be envi- proposition leading that an for the case sioned for an statute state- “proposal legisla- appropriation a ment. NEPA, Environmental Defense tion” under Here, Id. at 96 S.Ct. at 2726. there 1164, Dam], 468 F.2d Fund v. TVA [Tellico clearly System, program —the 1972), (6th involved the construction 1181 Cir. program the FWS as a and on treats Accord, Realty Income a dam and reservoir. prepared programmatic which it has EIS. 427, Eckerd, U.S.App.D.C. 564 183 Trust v. ap- (congressional committees’ 447 F.2d proval v. 30. Natural Resources Defense Council Mor- building); a federal of construction of Leasing], 148 U.S. ton Continental Shelf [Outer Atchison, Ry. Topeka, v. Calla- and Santa Fe 5, 12, 15, 827, 834, App.D.C. 458 F.2d (D.D.C.1977) (construc- F.Supp. way, (1972) (cited approval in Yankee Vermont locks). of dam and tion NRDC, Corp. Nuclear Power v. 435 U.S. program de- for the (1978). EIS was An 98 S.Ct. 55 L.Ed.2d 460 velop liquid reactor metal fast breeder (LMFBR) In- Institute for Public in Scientists’ Public Information v. 31. Scientists’ Institute for AEC, U.S.App.D.C. formation AEC, 395, 408, F.2d applicable (1973). NEPA was held F.2d 1079 program basis of “a LMFBR on the to the year, legislation’ ‘proposal in the form each request may appropriations 32. Such an have En- the [Atomic of ergy] significant no more effect the environment Id. at 481 F.2d Commission.” previous year’s request (possi- than the routine program the devel- involved The LMFBR amount), bly change in in the same but the energy technology and the opment of a new meaning- context makes it a determinative and par- expenditure which would R D funds of & proposal legislation. ful energy tially later alternatives determine to the nation. available *9 update time it will this time to con- environmental study no occasion at We have instances, whether, a “new light changed or in what of plans sider and circumstanc- vastly because of may required be look” es.33 circumstances, by NEPA either changed Programmatic The EIS sets forth the en- provision of federal by some other perhaps consequences vironmental FWS’s a consider whether need we now law. Nor present plan operate the NWRS at a a duty to take may mandate such court roughly expenditure constant real level of new look. given priority to its conservation mis- we do hold is that EIS is re- What public sion over use—recreational and edu- a new is had. A new when such look quired cational. It also considers the effects of periodically and may generated be look program priorities alternate expendi- and good manage- as a matter spontaneously adequacy tures. The the EIS what it the bureaucracy. ment revitalization of (a long-term strategy analysis) stimulus, external response It be challenged by plaintiffs not been appeal. changed circumstanc- dramatically as when The controversy presented to this court con- review, perhaps accom- cry

es out ruling cerns the district court’s that an EIS existing programs changes in the modate is required in the future for each and every statutory It is clear agency’s mandate. budget request. annual We hold to the in the agency is wide discretion that there contrary. will when such review be con- to determine government That is the essence ducted. Obligation C. OMB’s impossible It is to have and administration. requires NEPA all agencies of the all everything look” at the time. “new federal government to: look the ensuing is such a new When there is a “proposal for request for identify develop proce methods and legislation” under NEPA. dures, in [CEQ], consultation with will insure that presently unquantified whether We need not decide environmental amenities and values may painstaking reappraisal of the kind of given appropriate consideration in de plaintiffs time was at the NWRS cisionmaking along with economic and lawsuit, because FWS has brought this technical considerations.34 Programmatic one. The since undertaken requirement This is applicable to OMB evaluates environmental conse responsible operation agency quences proposed preparation legislative alternatives thereto over the and other executive NWRS proposals, next The has indicated that a conclusion decade. FWS drawn from the Act analysis to make an from scratch itself and supported by legislative intends histo years; ry at of those ten the mean- the end and administrative regulations.35 Our principle agency’s borrowing OMB’s is also 33. The of an ex- role identified the CEQ isting analysis regard from Guidelines. available central role with CEQ’s sources, generally appears NEPA Natural Resources Defense Council v. from Executive Order 8, supra. Morton, supra note n. 458 F.2d at Guidelines is- CEQ pursuant sued applies equally borrowing agen- Executive Order to a from an envision enforcing “proposals an OMB role in cy’s prior analyses. NEPA’s own legislation” provision: branch in this 102(2)(B), 4332(2)(B). Section 42 U.S.C. cooperate giving will [OMB] [CEQ] guidance as needed to assist in iden- legislative supra. at note 35. See text tifying legislative items believed to have envi- history indicates Senator Jack significance. Agencies ronmental should NEPA, son, anticipated prime mover of prepare prior statements to submis- play large coordinating role in OMB would legislative proposals sion of their to [OMB]. compliance with NEPA. National Envi regard, agencies identify types In this should Policy: Hearing ronmental on S. S. 237 repetitive legislation requiring environ- and S. 1752 Before the Senate Comm. on Interi (such types mental statements as certain Affairs, Cong., or and Insular 91st 1st Sess. affecting transportation policy bills or annual authorizations). 116-17 construct *10 (and certainly proposals all minates in some but not for view that under routine) appropriation principles are requests previously not discussed. 102(2)(C) legislation” under § “proposals This is not an onerous task. Preparation need, agencies, part on the of underscores Budget is OMB’s central function in determining when an EIS is guidance helping the President coordinate policy budget with a required in connection agencies priorities establish quest. stands, his administration. As it the declar- atory judgment imposes duty on OMB to clarify the obli These observations initiate the procedures delineation of the OMB, by NEPA and as gation imposed required by NEPA in connection with the budget for key agency in the executive’s budget process.37 This task will be eased give appropriate guid process, mulation simplified, anticipate, by we our rulings The district court agencies. ance identifying what types to the declaratory relief that NEPA re granted legislature for appropriations do and do not quires: EIS, require preparation of an as well as of the Office of Man- Defendant Director clarifying the bounds of an agency’s discre- Budget develop formal agement and tion in undertaking a reevaluation of an will, procedures methods and ongoing program. own administrative respect to the Office’s identify those proposals, actions and give OMB will consideration to how requiring environmental agency actions obligations under NEPA can be discharged considered, prepared, statements to be violating without the principle that holds an and disseminated.36 agency’s budget requests prior confidential aspect have not focused on this to final review parties the President. We do might ruling expand and we problem of the district court’s on the here. For one However, appealed. thing, treat it as not was not developed by govern might argue that it government appeal. Furthermore, defendants ment’s we anticipate subject to further considera- that the implicitly ponder was OMB will wish to the mat their main contention. ter light light tion in the afresh in of the rulings in this on the rulings type opinion. And the we have made matter be capable of budget appropriation requests resolution in presents a manner that pro obviously an will affect require gram proposals permit terms that To avoid uncer- obligation put on OMB. environmental analysis, without disclosure tainty, projections we have considered the matter and of dollar betrayal other ruling requires genuine budget affirm OMB require confidence. Since adopt procedures appropriate regula- ment of an environmental impact statement comply obligations tions with the NEPA in budget connection with proposals will imposes budget process on the when it cul- relatively instances, arise in few under the 1500.12(a). informal § 40 C.F.R. directives to the for NEPA Apart regulation, compliance, particularly from the we find a CEQ in connection with duty requirement specific appropriations in NEPA’s to “identi- legislative pro- their and other fy develop procedures,” Anderson, methods and posals. See F. The National Envi- view, 4332(2)(B). provision In our Act, U.S.C. Policy ronmental in Federal Environmen- OMB, obligates manager in its core role as (E. Dolgin tal Law 331-35 & T. Guilbert eds. process, budget promulgate guidelines to 1974); Rodgers, Law, 705, W. Environmental identify those or other may already guid- OMB have some proposals subject require- to the which, ing regulations in this area as a foundation for 102(2)(C), ments section U.S.C. required procedures and methods. 4332(2)(C), “proposals legislation.” event, declaratory judgment obliges OMB procedures to look at its and methods for as- 36. Sierra Club v. Morton Wildlife [National suring Refuge System], inclusion of environmental values in the at 1 Civ.No. Order 6, 1975), budget process (D.D.C. necessary and to J.A. 92. revise them if June requires, to conform to its views what in this 37. Since this issue has not been focused consistently opinion. with this case, formal or we have not researched OMB’s *11 forth, pro- following programmatic a and since course we have set review. principles major program reviews and will propose OMB have latitude to a posals for method gener- in probably can be disclosed that harmonizes both NEPA and changes budget outline, impact processes. sufficient for statement al objec- undercutting without the purposes, The case is pro- remanded for further underlying budget-type secrecy, OMB tives ceedings not opinion. inconsistent with this develop to fairly proposal can be called on ordered. So both and that and harmonizes serves Certainly the fact that a budget processes. MacKINNON, Judge, Circuit concurring by the subject to further review proposal dissenting in and in part part: requirement is no bar to NEPA’s Executive I concur in the foregoing opinion insofar On the for statement. an environmental as it reverses the declaration of the district an precisely NEPA calls for EIS contrary, requiring prepare court defendants to an consequences may be so that environmental Impact Environmental (EIS) Statement account a final taken into before decision request with each annual appropriations for agency. the executive official or reached operate to the National Refuge Wildlife (NWRS). In System my opinion such re- IV. CONCLUSION quirement wholly would unreasonable in salutary heightening NEPA has been in that it in an interpretation would result of values, agency attention to environmental the NEPA by Congress. never intended part by requiring of environ- disclosure rejection The court’s of the Sierra Club’s However, cannot consequences. mental we position concurrence, my has but because bloated, allow NEPA to be and indeed en- opinion attempted rely the has to on a feebled, by pushing logic of Section flexible reason” approach, “rule of rather 102(2)(C) to ridiculous extremes. NEPA heeding straight-forward than words of require does an annual EIS on routine NEPA, its holding my opinion does not operation and every pro- maintenance of go enough rejecting any far require- EIS gram significant environmental rami- for appropriation ment requests. annual Its rule reason fications. of does not de- opinion The court’s holds a “rule of rethinking everything mand all the time. applied limiting reason” must be the lan- The Fish and has under- Wildlife Service guage of regulation. It this bases con- taken a re-evaluation of National Wild- CEQ on plain meaning regu- clusion System, analy- life has an done 1500.5(a) lation 40 C.F.R. states long operation sis of term for plan its subject “action” to require- the EIS System. We presented are not with chal- ment includes “recommendations or favor- lenge validity that exercise of reports relating able to legislation including ” programmatic discretion. In view for requests appropriations (emphasis add- there prepared EIS it has is no further ed) points that if out the contentions of obligation under NEPA at this time. appellee upheld they were would mandate judgment obligating defendants the absurd that all requests result for ap- prepare opera- an annual on require NWRS propriations would EISs. rea- judgment tions is reversed. We affirm the imposed sonable limitation so routine declaring duty develop OMB’s methods appropriations bemay distin- procedures implement the NEPA guished from intensive “new looks” at a obligation provide program’s budget, being reasonable to accompany proposals statements those latter require EISs of the but not of the propos- that are Actually only former. issue before us is legislation. duty, als forth This as set the court’s holding respect to the an- opinion, applies appropriation request when the nual for the NWRS budget approval appropriations is one necessity and so there is no dictum proposes programmatic considered as to limits of ultimate the rule. Case, Morton, unreasonable to Plains Coal Sierra Club v. that it would be agree I major budget every F.2d 869-870 n.20 require EISs , grounds, to the unreasonableness rev’d on other quest. addition U.S. statute, in- construction 95 S.Ct. 49 L.Ed.2d 576 In this of such prece- and the uniform there Congress appel- record is no evidence at all that tent , legislative pro- generations of allegations “capable proof.” dents from lees’ As clearly indicate that ceedings states, opinion Judge Leventhal there appropria- “requests for never considered little that the seems doubt Sierra Club can *12 “proposals” “proposals either tions” to be some proof offer that of its members make major federal action.” In Refuges use of the Wildlife involved in this budget request proc- opinion the entire my case, appellees proof but must offer of that involved here is outside ess for the NWRS fact, merely allegations. not of NEPA. requirement the EIS However, though appellees prove even do that some of their members use the Wildlife I they Refuges, my still must clear what is to Standing mind a much more difficult hurdle before they can be held to have their demonstrated issue, I in that preliminary As a concur standing. Appellants strenuously argue opinion that directs the part of the court’s there is no evidence that any of the remand to consider the issue lower court on budget requests by the Depart- submitted or not the Sierra Club has of whether the ment of Interior and the will granted summa- OMB standing. The lower court in any result the curtailment of identifiable appellees and in so ry judgment refuge or refuge activity. may It well have determined be doing perforce must bring proposed to this suit. true that the staff reductions will they standing have did however, Club, not in impair quality submitted no af- fact of the Wild- The Sierra Indeed, availability. either of its indicating life Reserves or their fidavits in appellees’ or its fellow members one affiant testified that such lands as wil- members question, managed by the Wildlife Reserves in derness areas are best not fact used be- ' enjoyment ing managed argument of these areas at all. This not or that their is any way logic. Appellees affected the NWRS devoid of must demon- would be them, organization An which strate service to i. budget proposals. that some denial of e., injury injury allegedly gives to itself or its mem- which them prove does not standing challenge standing, harm to “in fact from” the chal- bers has no results environment, Morton, lenged requests, v. 405 v. Eastern Sierra Club Simon 727, 1361, Kentucky Rights Organization, 92 31 L.Ed.2d 636 Welfare 426 U.S. S.Ct. ; (1972) Davis, 26, 42-43, 1917, Administrative Law in the 96 450 U.S. S.Ct. 48 L.Ed.2d ; D., Here the com- Seventies 22.19 see also Linda R. v. Richard S. 614, 617-18, 1146, plaint alleges injury, Sierra Club but 410 93 35 U.S. S.Ct. allegations (1973); have been denied King’s County these L.Ed.2d 536 Econom- supported by any not evidence of record. ic Development Commercial Ass’n v. Har- din, (9th Allegations standing premised 1973). on which is F.2d 478 Cir. seem- capable proof ingly must be both “true and at self-evident that a decline in truth trial,” SCRAP, funding United States U.S. will result in the decline of the 669, 688-689, quality overly 93 S.Ct. 37 L.Ed.2d 254 provided of the service case, (1973) (SCRAP I). In this where when chief dealing facile with areas whose allegations plaintiff’s standing are contro- value scheme lies verted, being preserved of the sum- leave particularly light as nature would Moreover, effected the lower them. dem- mary disposition appellees unless can court, necessary upon it is facts onstrate causal connection between premised only proposed be not standing appropriation al- and some identifia- demonstrated, Northern Great ble decline in one of of a leged but its member’s use port on a proposal. at Club is in effect U.S. refuge, the Sierra S.Ct. wildlife litigate not as to such finding action outside asking this court but, injury assuming any intent of the statute the Court injury, stated: particular exists, general injury ato suffered at all as clearly The statute states when large, which courts at public statement under the [that is] rectify, Schlesinger v. Re- empowered 102(2)(C) first sentence of moment War, U.S. Stop servists at which an agency must have a final 2925, 41 L.Ed.2d 706 94 S.Ct. “is the ready statement time at which it remand, the District Court must (1974). On makes a or report recommendation on a proof concerning these require consider and proposal for action.” federal Aberdeen & standing.1 questions relating SCRAP, Rockfish R. Co. v. 422 U.S. 2336, 2356, 45 S.Ct. L.Ed.2d [95 191]

II (1975) (SCRAP II) (emphasis in original). “Proposals”? Budget Requests at U.S. S.Ct. 2728. And 405— further: attempt bring budget appellees *13 authority A court has depart no to from statutory language requests under and, statutory language a balanc- “proposals quiring EISs factors, ing of court-devised determine a major actions.” Since it federal or other point during germination process of a requests “pro- are not opinion that such my potential proposal at impact which an if “proposals,” are not posals,” and even statement prepared. should be major legislation or proposals for either action, no merit whatsoever I find federal 406, 427 U.S. at 96 S.Ct. at 2728 (emphasis argument. in the Sierra Club’s original). requests by departmental It is clear Appropriation budget-making “proposals” process until proposal there is final cannot be considered no until the units degree at least that of President includes the item in his they budget have achieved to Congress. when the only President Not are the finality only suggestions attained transmit to the made formally determined OMB and the various departmental Congress part to as request confidential until the President transmits budget. Northern Plains them part his Great to as See of his formal Case, 390, 2718, moreover, 96 budget,2 Coal 427 U.S. S.Ct. 49 but the statutory and (1976) wherein the Supreme L.Ed.2d 576 governing constitutional scheme budg- a et-making Court struck down decision of the process Court make it clear that Appeals empow- which held that NEPA task of submitting proposed budget require preparation solely presidential ered court to responsibility.3 It to impact begin point an statement at some not until the President himself has acted prior recommendation any budget to the formal or re- proposed,4 has been Appellees might maintain that as an extended here. It also alternative discussion be charac- customary demonstrating “injury they to standing fact” terized as a claim that had be- standing, they given standing they be should be- cause did have access to facts that denied, they by the might proved standing. cause were NWRS and the have EISs, file OMB’s failure to “the information provided infra, which pp.---of U.S.App. would be environmental 2. See opportunity D.C., and pp. statement to com- 914-916 F.2d. thereby partici- ment on the statement to pate decisionmaking process.” Budget Act, in the Brief for Accounting 3. See § 207 of the Appellees theory standing 1921, 22, 16, novel at 18. This 42 Stat. 31 U.S.C. as amended case,» is, disposed 1970, on Reorganization the facts of of ad- 101 of Plan No. 2 of versely position by appellees’ to United States 84 Stat. 2085. Richardson, 166, 176-77, U.S. v. 94 S.Ct. analogous 41 L.Ed.2d and The Mineral 4. For an situation where recommen- Morton, Case, King apparently Club v. Sierra 405 U.S. dations even more final than OMB certainly agency budget requests 31 L.Ed.2d 636 S.Ct. than (and be) that it sufficient conclusiveness does not merit were continue not deemed final (ii) any adverse environmental are forwarded effects supply that which cannot agencies and OMB be avoided should the the various through approval purely presidential proposal implemented, be final the statute do not and under pre-decisional (iii) action, proposed alternatives to the filing an require proposals constitute (iv) the relationship between local Rockfish R. Co. EIS, Aberdeen & cf. short-term uses of man’s environment SCRAP, 95 S.Ct. 422 U.S. and the maintenance and enhancement II). (1975) (SCRAP To a L.Ed.2d long-term productivity, extent, it make as much would certain (v) any irreversible and irretrievable to submit require cabinet ministers sense commitments of resources which would made at confidential suggestions EISs proposed be involved in the action require it would to meetings as cabinet implemented. should merely a unit in the EISs OMB— making any Prior detailed state- President5 in this Executive Office ment, responsible Federal official to apply was never intended case. shall consult and obtain the com- incipient requests. any

ments of Federal which has Ill jurisdiction by special law expertise with respect im- Legis- Requests “Proposals Budget pact Copies involved. of such state- lation”? ment and the comments and views of in fact when the President has Even Federal, State, appropriate Congress, assum- his transmitted agencies, local which are authorized to does indeed in- transmittal ing that such *14 develop and enforce environmental not, proposals do to “proposal,” such volve a standards, shall be made available to legisla- for “proposals constitute my mind President, the the on Council Environ- action” within the major federal or tion Quality public, mental and to the as provides: NEPA Congress. intendment provided by section 552 of Title Unit- that, and directs Congress authorizes Code, accompany ed and shall States . possible: extent the fullest to proposal through existing agen- Federal Govern- (2) agencies all . cy processes review shall— ment 4332(2)(C) added). (emphasis 42 U.S.C. § every recommendation (C) include legislation for report proposals consistently or have contend- appellees signif- actions major Federal litigation and other that the annu- throughout this ed the hu- quality affecting icantly requests to finance the Na- appropriation al environment, detailed statement Refuge System proposals man Wildlife are tional official on— responsible (1) by agencies legislation “for by federal major significantly actions” federal impact of the other (i) the environmental Appellees the environment.6 in- affecting action, proposed (1) them, legislation significantly approved for see &C af- has until the President environment; major Corp., fecting and Air Lines v. Waterman S affecting significantly the envi- (1948), as to certificates action where CAB orders federal submit, transportation plaintiffs foreign Consequently;' were not air overseas or ronment. judicial by susceptible required until Envi- review the National “mature” defendants are by (NEPA), approved Policy 42 U.S.C. the President. Act ronmental prepare, and seq., disseminate et (1970) provides: “There is in 16§ 5. 31 U.S.C. concerning the environ- statements consider an Office the President the Executive Office of proposals. impacts Plaintiffs of such mental Budget.” Management and Management and the Office that also claim develop identify Budget failed to [appellees] that these an- Plaintiffs contend by required procedures methods formal proposals National Wild- finance the nual 102(2)(B) Guide- and the System proposals federal Section life Sess., p.-, Cong., 93d 1st June Rec. argument the their phase of elude in whenev- is an EIS that [H.R. 8619]. contention not year does any given er the NWRS added). (emphasis It is the law p. Id. past, in the they had as request, initiate authorizing appropriations additional purchase “legislation,” refers to as not subse- (2) a re- and whenever refuge,”7 lands for All quently resulting appropriations. ap- involves a reduction quest is submitted propriations must first be authorized appropriations.8 the use of or alteration which emanate from the select com- laws argu- underlying these having jurisdiction of that function mittee The rationale that these the contention ments, Appropria- far as not from the government, so is con- “legislation” might constitute acts This distinction mean- tions Committee. all cerned, functions in the House Rule ing pointedly set forth can be enforced right, a vested have legislation in the inclusion of prohibiting naturally routinely to parties, by third appropriation bills: largest sums ever to receive continue prohibition against 1.1 The inclusion given purpose; appropriated appropriation legislation general ex- continuing that of change—even House rule. It provided bills is purchase of new pand program any provision in any states: “Nor shall of increase as at the same rate refuge areas thereto changing such bill or amendment in the change to a past in the —amounts order, except law in existing such as my view such law, e., “legislation.” /. germane subject to the matter of being completely unsupportable a contention ” expenditures. shall retrench bill interpreta- or as an legal doctrine either XXI.) (Clause Rule Judge intent. Leven- congressional tion of in an Language appropriation 1.2 bill to the absurd conse- has referred thal existing law is changing agree and I it would entail quences Cong.Rec. not in order. 105 86th conclusion. Sess., 29,1959 Cong. 1st June [H.R. 7978]. absurdity of the patent Apart from Procedure, p. (emphasis L. Deschler’s I also find by appellee, suggested result added). contrary to respect to be claim in this their *15 general ap- While this rule is limited to traditionally has Congress meaning bills, passages the italicized propriation “legislation.” when it refers intended Congress clearly indicates that when refers prece- supported by conclusion is This “legislation” “changing existing it means evidence the distinc- Congress dents law.” Congress, as to what the mind of tion in legisla- constitute what does not

does and vein, legislation In the same is defined as tion. . . making “the function of rules .” Congress distinguished Traditionally, Webster’s Third New International Diction- “appropria- “legislation” and an (3d 1961) between (emphasis added). ed. ary 1291 this practice in congressional The tion.” money of a sum of is not the supply The Proce- in L. Deschler’s respect is set forth making congressional of a rule. Thus (1974): dure English usage make it clear that common furnishing money previously au- general 7. An item contained in a

§ purposes “legislation.” is not authorized thorized must be appropriation bill congressional precedents support authority appro- for the Statutory law. Cong. interpretation legion. However some . . . 119 priation must exist. Brief, added). Appellees’ p. (emphasis 3 on Environmental Quali- lines of the Council ty implementing National Environmental Id., p. 30. Act, Policy 40 1500.3. C.F.R. Id., pp. 29-34.

Olí States, ed interpreted “legislation,”9 360 U.S. may have S.Ct. courts Congress (1959) that controls. L.Ed.2d 1115 it is the intent of stated: in the Envi- Congress when my And in view Congress may only Since investigate into “legis- Protection Act referred ronmental those areas in it may potentially lation,” respect legislation Con- legislate appropriate, or it inquire cannot thereby convey the it intended gress, into matters which are within the exclu- Congress customarily meaning as same province sive of one of the other branches term when used in its own gives to the of the Government. proceedings. 360 U.S. at at (empha- S.Ct. ques- The construction of the Act here in added). sis Congress what intend- tion is controlled This Sirica, court v. Nixon 159 U.S. Congress ed elsewhere distin- and here as App.D.C. 487 F.2d 700 stated: guished “legislation” “appro- between Congressional control over appropriations priations.” example, Congress For also legislation is an guarantee excellent very pointedly makes same distinction that the executive will not lightly reject a “legislation in the criminal code between or congressional request information, appropriations,” 18 1913.10 U.S.C. § is well aware that rejection such a Congress distinguishes also between “leg- increases the chance of getting either no “appropriations” islation” and in 22 U.S.C. legislation or legislation. undesired 2394(c) 487 F.2d at 778 . committee Congress (emphasis added), quoting from Bishop, The charged considering legislation, ap- Executive’s Right of Privacy: An Unre- propriations expenditures or under this Question, solved Constitutional 66 Yale L.J. chapter, (Em- has delivered . phasis added.) In Lansdale, Schneider v. 191 Md. 2996e(c)(2)(B) addition 42 U.S.C. refers A.2d 671 the court noted that to communications circuit court had based its decision on the appropri- connection with broad general proposition that the mak- directly affecting ations the activities of ing of appropriations legislative is a func- added.) the Corporation. (Emphasis tion. issue is much narrow. It more

Some courts have also noted distinc- is whether the legislation” words “enact tion. Justice Harlan in Barenblatt v. Unit- XIA, as used in Article Sec. 3 of the TVA, shall, 9. Cf. Environmental Defense Fund ment of in the absence of (6th 1972), F.2d 1164 express Cir. where the court over- Congress, authorization be used upon looked that Guideline it relied directly indirectly pay CEQ any personal “legislation including ap- referred to service, advertisement, telegram, telephone, e., propriations,” “legislation including legis- i. letter, matter, printed or written or other appropriations,” lation for which would refer to device, designed intended or to influence in *16 appropriations. authorizations for 468 F.2d at any Congress, manner Member of to favor 1181; for Scientists’ Institute the Public Inter- otherwise, oppose, by any legisla- or vote or est, AEC, U.S.App.D.C. Inc. v. 156 481 appropriation by Congress, or tion whether approach. F.2d 1079 contains the same any before or after the introduction of bill or 156 at 481 at F.2d 1088. proposing legislation ap- resolution such Neither of these cases take stock con- propriation; prevent but this shall not offi- gressional intent evident in its use of the terms employees cers or of the United States or of “legislation” “appropriations” for more departments its from communi- years. light- than a hundred This should not be cating to Members of on the re- ly disregarded language. in favor of loose street quest Congress, through Member or to all, Congress greater After does have some channels, proper leg- official familiarity “legislation” “appropria- appropriations they islation or deem which average tions” than the uninformed citizen. necessary for efficient conduct of the Froehlke, Environmental Defense Fund v. 348 public F.Supp. (W.D.Mo.1972). business. 364 added). (emphasis 18 U.S.C. § appropriated Lobbying moneys —No part money appropriated by any enact- every existing embrace exercise of laws (legislation) Constitution in any general legislative power, in the broadest sense of appropriation bill. 4 (1907), Hinds’ § term, specifically such matters 3812, 3813. The §§ enactment of positive making budgets appro- as the and the law where none exists is construed as county expenses priation money “changing existing law” within the rule. be, in part, least Id., 3812, 3813, and although thus §§ legislative functions. legislation initial authorizing a program in need supply bemay “legislation,” The court 61 A.2d at 673-74. held subse- quent appropriations in the are not. phrase legislation” Maryland “enact For the lengthy congressional list of encompass making precedents Constitution did not in- volving budgets appropriation money and the decisions as to what leg- constitutes islation, county expenses. Precedents, see 9 Index, Cannon’s pp. 190-91(72) (hereafter “Cannon’s”). Supreme Court of Arizona has also In a case where the similarly. ruled State Further support for the position that the that a general appropri- Auditor contended was, is, intent of Congress that “legis- unconstitutionally ation bill violated the lation” be restricted to those instances provision of the state’s constitution restrict- where there “change has been a of law” is subject, ing each act to one the court held: found in the doctrine that upon limitations general appropriation is not in bill appropriations are not considered to consti- “legislation”; the true sense of the term legislation. tute Thus, Cannon’s 1710. § is, language implies, merely as the example, an amendment that proposes setting apart necessary of the funds to defer disbursements from an appropria- the use and maintenance of the various tion departmental until a regulation has departments government of the state al- been enforced does not constitute “legisla- ready in and functioning. existence tion,” as it is a limitation on an appropria- Id., Frohmiller, tion bill. Ariz. 24 P.2d Even when signifi- § Sellers cant added). interests and (emphasis policies The court affected such they continued at 24 P.2d 670: limitations are still not considered “legislation”. to be instance, For Hinds’ in appropriations If an act which makes reports ruling order, it was in departments the various state con- by a bill, limitation on an tains, appropriation appropriations, legis- in addition to withhold the appropriations from a subject desig- lation of such a nature that its object nated even title, though a in the contractual obli- expressed must be this alone gation of the United States for ocean immediately suggest leg- would that such mail service between the United (Emphasis islation could not stand. add- States and for- eign ports may thereby ed.) be left unsatisfied. It has provision also been ruled that a in an position The court sustained the auditor’s appropriation bill providing that no sums and denied the writ. This distinction be- thereby appropriated year for that may be tween was expended reformatory for a within a radius Frohmiller, recognized also in Carr v. Vernon, of ten miles of Mt. except the one (1938), Ariz. 56 P.2d 644 but a different then located at Occoquan, Virginia, merely result the bill ensued because did not con- amounted to a limitation and was in order subject. tain than one This same more in an appropriation bill. 7 Cannon’s 1710 universally recognized has been distinction (1935). None of these changed limitations parliamentary Congress. decisions in law, e., i. the statute authorizing the *17 Congress, in precedents All which this appropriation, they hence were “legisla- not respect go back as far as 4 Hinds’ tion.” (hereafter Precedents § ”), respect “Hinds’ make a distinction between With “leg- appellants’ claim that a “appropriation” money islation” and the of reduction in an appropriation from one year by Congress prohibit change any the of to another constitutes “legislation,” there law, by authorized and for in extent the maxi- decisions precedential of a number law, purposes by con- authorized does holding to the mum not specifically Congress legislation. amount of Cannon’s by that action § ruled It has been trary. appropriation below an cutting down House During Sixty-Eighth Congress, exist- not con- by law is authorized the amount provided law that ing investigations could was That decision legislation. to be sidered upon be conducted of either Tilson of Connecti- Congressman by made House, upon a concurrent resolution of ruling stated: who in cut An appro- both Houses. amendment to an rule of limitation for that “The reason priation by Congressman bill offered New- in Committee The House this: simply proposed part ton of Minnesota that “no of to refuse to right has the the Whole appropriation . . . shall be ex- object may which it for appropriate pended investigations . except object may although improper, deem those authorized and by directed the con- law; has been and it by be authorized current resolution of both Houses.” The sus- contended, various occasions and on upheld Chair such limitation in ruling “that Whole, of the the Committee by tained Congress may appropriate for object one right has the committee if by authorized law appropriate and refuse to par- for a anything appropriate refuse to object law,” for another e., authorized i. law it can authorized purpose ticular without such selective appropriation being pur- only part a appropriate by Congress considered to constitute legisla- money the use of the prohibit pose tion. Cannon’s 1595. § purpose authorized for the rest The rule prohibiting legislation, appro- has of limitation principle law. That priation bills is also construed strictly in that it repeatedly so been sustained favor of point of order. Cannon’s parliamenta- part a regarded as be permits any 1707. This single Congress- of the Whole.” Committee law of the ry easily man to enforce the rule merely by (1935). foregoing 7 Cannon’s raising point of order. prior ruling by Con- upon a ruling relied long This history, indicating that Con- reported at 4 of Maine Dingley gressman gress, in practices, its uniform does not Thus, p. 632 Hinds’ § appropriation consider of money law, change existing not a trenchment “legislation,” constitutes convinces me that Congress as uses e., “legislation” it is not i. “legislation” when it referred to in the En- that term. vironmental Protection Act it did in- not expenditure on the Important restrictions “legislation” tend requests, include may be embodied funds appropriated appropriations, authorized when sums enacting “leg- without bill appropriation requested do not vary exceed or from the ap- a bill for the considering islation.” amount statutory fixed its for the funds Commission propriation authorization. It is also evident that the part of provided that no Arts Fine foregoing precedents demonstrate that Con- expended traveling sums shall such gress did not intend to include the rise and than those incurred other expenses, appropriations fall annual for authorized for actual trav- of the Commission members limits, within purposes, and authorized returning from Wash- only going to el being “legislation.” within the ambit of meetings of the Commis- to attend ington cite the appellees While Guidelines sion, provision that such did it was ruled Quality, 38 Fed. on Environmental Council provi- While the legislation. not constitute seq., as Reg. 1500 et C.F.R. § funds for a the use of prohibit sion would in- opinion Congress in NEPA expert by law it was neverthe- authorized purpose within budget requests limitation and tended to include proper to be less construed applicable requirement reasoning underlying scope of the EIS legislation. ... refusing “proposals provision ruling is that action,” it view that major my the maximum federal continue *18 annual budget request these Guidelines is not incon- language of within the existing interpreting require- legislative authorization, the EIS with differing sistent in no only major authoriz- apply degree from ment those in submitted e., past, credibly i. to alterations in the can ing appropriations, be deemed “a proposal for law, merely major annual re- budget not federal action.” existing Congress would conclusion can be reached never quests.11 “major,” This consider such action as “proposals use of it is comparing the Guidelines’ the intendment of Congress that controlling. and their reference to “au- legislation” for continuation of annual event, CEQ funding naturally reflecting, thorizations.” in the size of — obviously basing regu- request, were Guidelines vicissitudes of economics terminology of the statute lations on elections —works no in change the law. hereinbefore out- being and —for the reasons Far from an example “major fed- equate action,” does not language eral might lined —this more properly be con- proposals for for quests sidered the result of “federal inertia.” As legislation. has been shown above in refuting the argu- budget request ment that a proposal is a for

IV legislation, supply has traditionally not been deemed to involve a change in the law. Budget Requests Proposals Major as for Although CEQ’s regulation, 40 C.F.R. Action? Federal 1500.5(a), stating that “action” includes Appellees persuade need for “requests appropriations” is entitled to requests “proposals legislation” for deference, considerable I find no indication successfully to order contend such re- whatsoever that meant to elevate quests subject should require- to the EIS supply normal annual digni- concerns to the ment, if it can demonstrate that these re- ty of “proposals for . major feder- quests “proposals should be considered as al Accordingly, actions.” I disagree with sense, major federal action.” Common interpretation Council’s of the scope of however, giving mandates short shrift such term requirements and find inap- leg appellees’ argument. this plicable to the annual budget requests of proposed any NWRS this case has not subject NWRS which are the of this change in budget appropriations, but rather appeal. routine, merely initiated continuing request funding. When such V time, are made for the first thus commenc- Requiring an EIS on the Budget Re- ing a new program, conversely where a quests and the Traditional Confiden- funding decision is made to no tiality of Requests Such all, terminating program, thus perhaps plausibly such action could be considered provides 31 U.S.C. 24 that “requests “major”; routine, agree but I cannot that a appropriations which are sub- tions or favorable al appropriate and the other are not limited to: (a) “Actions” include but (hereafter ity (a) (1) legislation 1500.5 1500.2 Appellees agencies As major ^[******] early the human Policy Types public decision “legislative actions”) cited the Federal, State, will, Federal actions significantly impact. of Actions covered possible assess reports concerning following: consultation environment and in all cases detail affecting and local * * * proposals recommenda- potential ** Feder- other qual- prior Act all * Appellees’ erence to “authorizations” emphasis tions.) ing tion (a) relating appropriations. statements lative identify types as certain 1500.12 Recommendations * * * environmental Budget. policy proposals * “authorizations” on Brief, Legislative types or annual construction authoriza- prior legislation including requests * Agencies In p. to the Office of of bills repetitive legislation * submission of their (emphasis Actions regard, agencies should of favorable affecting transporta- * statements significant. added). prepare impact in brief * Management The ref- * reports requir- except should (such legis- *19 Management budget mitted to the Office of considered requests from the vari- Budget by any department the head of agencies ous and decided upon the budget prepared shall be and sub- establishment he will Congress, submit to the nature and may the President determine in mitted as amounts of he has deter- provisions of section 11 accordance with mined to request are confidential and are ” generally title . This calls of this not publicly released until the budget agencies submitting their re- for various actually transmitted to Congress. App. quests through to the President the OMB. 231. reviews all requests, The President these This confidentiality budget requests makes his own decision thereon and then until they are formally submitted to Con- in the consolidates them form of an annual gress by the President is irreconcilable with budget Congress. which he transmits to appellees’ position these requests connection, pursuant authority to the subject should be the of Environmental Im- upon by conferred him the statute that such pact Statements. Congress has been aware requests prepared “be and submitted as the of the confidential nature budget re- determine,” (emphasis President add- quests, despite extensive recent legisla- ed) (Id.), determined, the President has tion concerning the budget process12 has at alia: inter no explicitly time suggested that EISs 3. Restrictions on agency disclosure of should be filed covering such requests. estimates. All sup- estimates and Perhaps even more significantly, Congress porting materials submitted to the Bu- when it so intended has specifically re- Budget reau of the are com- privileged moved the confidentiality of the budget re- munications. Their confidential nature quests submitted agencies. certain maintained, they since must be Consumer Product Safety Commission and in the process basic data and worksheets Commodity 13 Futures Trading Commis- by which the President resolves budget sion are examples whose problems and arrives at conclusions with budget requests have lost protection respect to his recommendations confidentiality. Congress, however, Congress. The head of each agency is taking frained from such legislative action responsible preventing disclosure of respect to either Department information contained in such estimates the Interior or the OMB. and materials except formal appropriation hearings request- and when Moreover, the Congress amendments en- ed Members of the Congress in con- acted to the Freedom of Act,14 Information nection with their consideration of the evince no intent to alter the confidential budget after its transmittal. nature of the communications between the President A-10, 18, and units within the Circular revised Jan. Executive Execu- Office. The President, report conference tive Office of the Bureau of on the Budget, App. 225. The amendments to the confidential status FOIA explicitly stated of such long is a matter of stand- term “Executive Office of the ing 1930’s, President,” dating at least from the App. from which disclosure could be 242, 243, and even after the President Act, under the “is not to be inter- 2, 1974, 93-250, Act, 12. Act of March Pub.L. No. Safety 27(k)(l), Consumer Products § Budget Stat. amended § 207 of the 2076(k)(l) V, (Supp. 86 Stat. 15 U.S.C. § Accounting 67-13, 1975); Act of Commodity Pub.L. No. Trading Futures Com- Stat. 20. The House 101(9), Committee on Pub.L. No. mission Act of 88 Stat. 1390- 4(h) (Supp. V, 93-250 commented “the rest of 1975). section 207 7 U.S.C. § deals with the functions of the Office Man- [of agement Budget], which were transferred 552(b)(3) V, (Supp. 1975) 14. 5 U.S.C. by Reorganization to the President Plan 2No. provide exemptions from disclosure for infor- changed of 1970 and which are not the bill." “specifically exempted mation from disclosure Cong. H.R. No. 1974 U.S.Code & Ad- inter-agency statute” and or intra- “[certain] min.News, p. (emphasis added). letters,” respectively. memorandums or budget.” including regulation the President’s immedi- This preted as entitled to def- erence.16 In light in the personal compelling ate staff or units Executive evi- dence referred to above that is to in- sole function advise and Office whose budget requests tended to remain confiden- that, quite It is true assist the President.” *20 tial, require I would not an EIS to be statute, gives advice the OMB to the submitted with the annual budget President,15 to the Congress as well as so of the NWRS. would fall some of its activities outside of proviso the above in the conference commit- VI extent report, tee but to the that “units” Obligations OMB and NEPA exist within “whose sole function is to OMB President,” advise and assist the such activ- In whether considering of Office proviso. ities within In this could be Management Budget “required is connection, 1303.20(b) 5 C.F.R. states that develop procedures to fulfill its [alleged] do “solely certain units of the OMB indeed obligations connection with the advise and assist the President” and that Budget process” concerning the National among provide these units those that Service, Wildlife it my view that regard advice and assistance “the the present of the regulations Department preparation formulation and of the Federal “procedures”17 Interior and its ade- (1970) provides (Generic “Blanket”) 3.2 15. 31 U.S.C. 20 that the General or OMB State- * * * provide any appropriate responsibility shall committee of ei- ments. it is the ther house “such aid and information as it request.” Associate Director Research and Environ- general ment to determine whether a envi- prepared ronmental statement should be 1, 16, Tallman, * * Udall v. 380 U.S. 85 S.Ct. program program service element 13 L.Ed.2d 616 17. Section 516.4 of Appellants’ Brief 10-11. tributed on November vide: the preparation Environmental Statements” Manual tions The “Procedures for 3.1 Statements on tal statement rector to ing appropriations. ment: deciding sidered ments. partment utilization of environmental statements. * * * eral actions A. Interior, A. The Assistant [SEC. 516.5] Fish Wildlife preparation office Recommendations Shall Types provides: * * to determine whether following include, whether a responsibility procedures of the Interior] — “to be used Service-wide for the review and *. environmental statements” of Federal actions to be con- requiring Responsibilities relating but are necessary for Determination, of an environmental state- criteria proposed Individual Actions. Preparation 8, 1974, by Service, Department for the Department Secretary environmental state- not limited approve are to legislation, which were favorable Program Policy preparation action individual ac- of Regional environmen- the Director [of be used in major all of 102(2)(C) to: requires the De- Interior reports bureau includ- * * Fed- pro- dis- Di- record also indicates: Appellants’ 239-240). agencies must submit relevant and available legislative EISs. legislative proposals its the 4.6.1 Administration Bills. On draft tal general include but vidual 4.5 Statements on Individual on the vidual and which tion 1972, paragraph 7(d)(2) on, legislation cantly environment every tailed statement of environmental 4.0 Federal Legislation (See prepared by Scope ^[*] ^[*] ^[*] . OMB also statements actions which have (OMB recommendation or favorable statements opinions affecting the quality statement. Brief 1-12 clearing statement (Emphasis are not are not limited to: and Procedures: NEPA directs ^[*] ^[*] ^[*] Circular ** or other the Service an environmen- should shall ^[*] ^[*] ^[*] process (when * * * one provides adequately Section Examples *. (emphasis added). will quality added.) from other A-19, major human be agency’s ^[*] ^[*] ^[*] usually significant (App. prepared 4.6) to include a de- prepared. revised actions of the human Actions. ^[*] ^[*] ^[*] environment, covered in be 249) substantive OMB solic- during actions on impacts agencies) prepared for indi- July impacts ^[*] ^[*] ^[*] legisla- signifi- report (App. Indi- quately comply requirements I and therefore dissent from respect COSMOPOLITAN BROADCASTING majority’s holding that the is re- OMB CORPORATION to take the action it commands.

quired

FEDERAL COMMUNICATIONS Conclusion COMMISSION, Appellee, summary, holding I in the concur American Civil Liberties Union of New committed error in ren- the District Court Jersey, Appellant. declaratory ruling that each an- dering its COSMOPOLITAN BROADCASTING budget request nual for the National Wild- *21 CORPORATION, Appellant, accompanied must life Service Statement, Impact an Environmental but I v. disagree with this court’s conclusion that FEDERAL COMMUNICATIONS Secretary of the Interior is any under COMMISSION, Appellee, legal obligation prepare programmatic Congress al., Croatian National et statement on the NWRS Bulgarian League, Japanese American opinion points out, As the court’s program. York, Inc., American Assn. New Fed absurd to construe the would be Environ- eration Clubs, of Lithuanian Women’s Act implementing mental Protection and its Portuguese People, Yugo regulations require an EIS each slav Consolidated Benevolent Assn. and budget request. my annual view it is Club, Iran Intervenors. equally even more absurd—and contrary to language statute —to construe COLUMBIAN LAWYERS regulation requiring law and ASSOCIATION, Agency any “obligation” is under Appellant, produce half-way “pro- measure of a v. grammatic” environmental statement. For FEDERAL COMMUNICATIONS above, the reasons set forth I do not feel COMMISSION, Appellee. required that an is ever the clearly .pre-decisional stage at which the OMB or HUNGARIAN FREEDOM FIGHTERS appropriation submits mere FEDERATION, Appellant, yet which has formally to be incor- porated into the transmitted to Con- FEDERAL COMMUNICATIONS gress by the President. I thus conclude COMMISSION, Appellee. that the OMB is not to establish procedures 76-2019, new in order to comply Nos. 76-2033 NEPA. and 76-2034.

United States Court Appeals, District of Columbia Circuit. Argued Dec. May

Decided