Sierra Club v. Rogers C. B. Morton, Secretary of the United States Department of Theinterior

case, however, the In this Com appropriateness existing of its serv- solely proce on its constituency. Hearing mission did not stand ice to its old added, exigu in an agreed; rule. It albeit dural Examiner the Review Board did manner, nothing it in what ous saw not.11

petitioners offered to unsettle its initial deny In view of the

decision to review. remand, weakness of the case for only but reason, we think that what enough.9 said here was Commission is that final claim

Petitioners’ remanding to allow in erred

Commission showing bring its Suburban Cosmos al., Appellants, CLUB et SIERRA the Commission’s with compliance into doing the Commission In so Primer. privilege extending to Cosmos Rogers MORTON, Secretary B. C. pend applicants generally available Department the United States object on the Petitioners ing cases.10 Interior, et al. only a put in had ground that Cosmos No. 74-1389. on Subur “desultory” performance Appeals, United States Court from issue, this “stemmed and that ban District of Columbia Circuit. re Commission’s its indifference than area—rather in this quirements Argued 1974. Dec. confusion.” uncertainty or any from Decided June re- the Review Board opinion however, personally that Cosmos ports, thirty-seven communi- some

interviewed up with a these ty leaders and followed ninety-two. to some

questionnaire mailed delinquency gross there was no

That by the fact part suggested

Cosmos’s Hearing Examiner resolved

that the princi- in Cosmos’sfavor. Cosmos’s

issue that it difficulty to have been

pal seems that, merely ex- it was

assumed since larger coverage to an area

tending its the area it al- encompassing

than but served, propose

ready it need not could rest on

programming changes, but governing bring rule for recon- Commission them petitions into with the Primer. compliance ground See on the of new evidence. sideration 2d at FCC 680. The has al- Commission 1.106(c) (1973). § 47 C.F.R. lowed such amendments even where record has been closed and the case is before Telegraph the distinction Similarly, Daily Broadcasting it for review. See Risner Inc., 28 as a case in which the UHF issue was FCC 2d 330 The Commission inter- being seems to us sufficient- reopened anyway Cosmos’s for a remand as an preted request articulated in that case ly indication intended to make such an “the considerations of administrative finality amendment. compelling.” were not so See note supra. disagreed 10. The and Order Report accompanied The Review Board further the issuance of the Primer specified appli- the Trial Examiner’s failure retroac- apply pending hearings were cants who the strict tively standards of the Commission’s given showings Broadcasting make Suburban would be decision in Minshall Co., FCC showings (1968); those which to amend J.A. days 72-74.

Syllabus the Court groups Appellants, suing of themselves and their on behalf members, sought declaratory, injunctive, against appellees, relief and mandamus Interior, Agri- Departments the culture, Army, requiring them to comprehensive prepare a envi- impact statement before al- ronmental lowing development of the Northern Plains, encompassing eastern Mon- Great tana, Wyoming, northeastern and the Dakotas, one western of the world’s rich- Major Held: federal ac- est coal basins. contemplated tion is in the Northern Plains, is whether but it uncertain sufficient- proposal for such action is preparation of an im- ly ripe require at this The case is pact time. District to allow Court remanded instance, to make the first appellees, Plains and their de- the Northern Great decision. present need for an regarding the cision Appellants will be impact statement. It is clear decision. challenge appellees’ able to required for “broad impact statement Infra, 169 at---, “partic- U.S.App.D.C. well as for programs” agency 514 F.2d at 882-883. Institute for facilities.” Scientists’ ular Information, (SIPI), Inc. v: AEC Public temporary limited '6. This court’s 395, 481 F.2d 1079 U.S.App.D.C. pending appel- injunction is continued beyond will look The courts by appellees of Adoption lees’ decision. fact, if, “broad to see agency denials regard to de- of restraint policy way pro- is under program” of the Northern Great velopment -, U.S.App.D.C. at Infra, 169 posed. prepara- ultimate decision pending -, F.2d at 870-875. comprehensive impact state- tion of in- enlargement of the may make ment appellees’ 2. Here course of con- Infra, 169 junction unnecessary. U.S. public statements over past duct and at----, F.2d App.D.C. years, findings as well as the five at 883. Court, prove beyond District doubt that grant of sum- The District Court’s agency program, regional a broad devel- reversed mary judgment opment Plains, of the Northern Great remanded for further this case is contemplated plans and that for control- with this inconsistent being proceedings ling formu- opinion. Infra, lated. ----, 514 F.2d at 875-878. MacKinnon, filed the Judge, Circuit dissenting opinion. officials are enti- 3. While federal filing without an out loud to dream tled statement, is re- a statement impact beyond proposal moves when a

quired tangible into some stage

the “dream” ripeness. The stand- of sufficient

form because the state- ripeness is low ard C., Terris, Washington, D. J. Bruce irre- prepared before ment should Keiner, Wash- T. Suellen with whom op- are made trievable commitments brief, appel- for C., was on ington, D. agency action. The precluded by tions lants. designed to aid deci- statement sion-making, Gelin, Jacques Atty. B. Dept. of Jus ex facto provide post not to tice, with whom Johnson, Wallace H. Infra, U.S.App. justification for it. Gen., Atty. Raymond Asst. N. Za at---, D.C. at 878-880. F.2d Pittle, gone and Attys., Herbert Dept. of adopted are balancing tests Four Justice, brief, were on the appellee for time is if the to determine from SIPI Clark, Atty., Morton. Edmund E. Dept. Applica- impact statement. an ripe for Justice, appearance also entered an produces case in this tests of those tion appellee Morton. dis- certain Since result. uncertain an Shea, C., Francis M. Washington, D. test, balancing elements positive with whom Conway, Richard T. David resolved, uncertain, about to be are now Beers, Washington, C., Booth D. District remanded case Coldiron, Butte, Mont., William H. were initially to de- appellees allow Court brief, appellees on the Montana Pow- now whether cide Co., Co., er Portland Puget General Elec. Infra, U.S.App.D.C. necessary. Co., Light Power Sound & and Wash- ---, at 880-882. ington Co., Water Power and also ar- gued appellees. behalf of all other remand, must re- appellees On present Merriman, Court Richard Peyton District M. G. Bow- port man, III, Mitchell, plans for and James K. their Wash- posture C., ap- the brief for ington, Opinion D. were on for the court filed Circuit Co., Light Power pellees Arkansas & Judge J. SKELLY WRIGHT. Co., Gas & Elec. and Wiscon- Oklahoma Dissenting opinion filed Circuit Light Power & Co. sin Judge MacKINNON. Nolan, Henry B. Weaver and John E. C., WRIGHT, were on the brief Washington, D. J.

Jr., SKELLY Circuit Judge: Richfield Co. appellee Atlantic Appellants brought suit in District Friedman, Cal., Angeles, Los B. Frank seeking Court declaratory judgment, in- appellee appearance for entered also junction, against and mandamus the fed- Richfield Co. Atlantic appellees, Departments eral Interior, Army, Agriculture, C., McDade, Washington, D. W. James alleging appellees had violated Sec- Peabody appellee brief for was on 102(2) tion of the National Environmen- Co. Coal Policy (NEPA), tal Act 42 U.S.C. Wolf, Case, Jr., A. R. Charles Justin 4332(2), by allowing development § Ward, C., Washington, B. D. David coal resources in the Northern Great appellee Northern the brief for were on issuing Plains without a comprehensive Co. Natural Gas (EIS) region. for the We must decide whether Joseph Wa- Ackerly and S. L. Robert appellees’ attempts control C., were on Washington, D. ger, ment of coal resources in four western Eastern appellee Panhandle brief states constitute a federal action Line Co. Pipe meaning within the 102(2), of Section C., Nickles, Washington, J. D. Peter and, so, if whether attempts those appellees brief for American was on sufficiently developed require the fil- System and Kerr-McGee Elec. Power ing comprehensive regional Corp. Answering question statement. the first affirmative, we reverse the Dis- Saunders, Jr., T. William A. Stuart grant trict Court’s summary judg- White, C., Washington, George D. J. ment for the and re- Miller, Pa., Philadelphia, were on the give mand this case to appel- federal appellee for Westmoreland Re- brief opportunity lees the to decide the second. Wilfand, Washington, Max D. sources. C., appearance appel- entered an for also I Resources. lee Westmoreland The Northern Great Plains Province D. John Ross was on ap- the brief for (the Province), which covers northeast- pellee Crow Tribe of Indians. L. Wyoming, ern Montana, eastern western Bell, III, C., Graeme Washington, D. also Dakota, North and western South Dako- appearance entered an appellee Crow ta, and southerly extends through strips Tribe of Indians. Colorado, of Nebraska and is one of the world’s richest basins relatively un- Wright L. Talis- A. and Harold Dale tapped coal reserves.1 Most of the coal C., man, Washington, D. were on in the Province is located in the Fort Co. appellee Cities Service Gas brief formations, Union and Powder River C., Edwards, Washington, D. Max N. occupy which the four northernmost appellee the brief Mc- was on states. The resting coal under those Donough. plains highly desirable because it is of BAZELON, Judge, and Chief Before sulphur content, low which makes it en- MacKINNON, Circuit and WRIGHT vironmentally preferable, and because it Judges. relatively surface, close to the which Montana, Sixty-three Wyoming, (hereinafter Report 1. counties sources Draft Interim Report) and North Dakota hold of the nation’s Draft Interim at III—1. NGPRP 48% total coal reserve. Northern Plains Re- 862 by strip railroads, min- readily aqueducts, pumping plants, accessible makes dams, cent of the na- per reservoirs, and new

ing. housing some 85 Since strip reserves is located low-sulphur accompany coal necessarily tion’s would jurisdiction public land under mines. Interior, prudent Secretary of the say, Needless to such development un national as- development of this valuable der auspices demands compliance to federal initiative largely subject set with NEPA’s dictate than an impact years, as concern control. In recent accompany proposals self-sufficiency in greater national about “major Federal actions significantly af mounted, steps to- energy matters has fecting the quality of the human envi in the Province such ward * * ronment *.” 102(2)(C), Section while the coal taken. But been have 42 4332(2)(C).3 U.S.C. § See generally great are in de- of the Province reserves Scientists’ Institute for Public Informa mand, long and the short over the both tion, Inc. (SIPI), v. AEC 156 U.S.App. term,2 development of the the massive 395, D.C. (1973); 1079 F.2d Natural secure, utilize, and de- necessary to area Resources Defense Council v. necessarily entails resources those liver (1972); F.2d 827 consequences. In environmental broad County Greene Planning FPC, Board v. ef- the obvious addition Cir., (1971), denied, F.2d 412 cert. now-fertile strip-mining acres fects 409 U.S. 93 S.Ct. 34 L.Ed.2d 90 land, affect development would also (1972); Calvert Cliffs’ Coordinating quality, region’s supply and air water Committee, AEC, Inc. v. 146 U.S.App. wildlife, population distribution quality, D.C. F.2d 1109 The Sec economic structure. composition, and retary of the Interior has shown concern caused effects would be These over developing the coal reserves of the themselves, by but mines the Province in a responsible manner consist plants, gasification plants, coal power ent with NEPA, NEPA.4 he recognized, 2. Ph.D., U.S.C. for coal will present coal is said to energy In tailed statement For at least report impact on man’s on— approach the environmental and in use of the shall— [A]ll posal which cannot posed action, (A) (C) pertinent quality (ii) any adverse (i) (iii) § App. include in utilize a crisis. energy growth Federal actions on the environmental ^[*] 4332(2) (1970), provides: decisionmaking alternatives proposals which will ^[*] triple by implemented, of the human natural and 286. the short ^[*] be the part, Affidavit systematic, every environment; ^[*] Over avoided should the design § best rates the environmental term, insure the significantly affecting 102(2) Federal legislation ^[*] recommendation year social way responsible environment, arts in proposed action, Ralph increased interdisciplinary long ^[*] nation’s need sciences and Government ward off an of the NEPA, integrated and other E. term, planning ^[*] have an Brief official effects use of Lapp, a de- pro- pro- at 4. ation in the There are of available resources!.] public action in solved conflicts and shall be made available ate alternatives Council on Environmental and enforce environmental agencies, which are responsible mental al special expertise Prior (D) study, develop, term commitments of resources involved in maintenance term . existing agency (iv) (v) appropriate implemented. and obtain the comments of productivity, uses any impact making any proposal currently provided by Province accompany which has and the comments and relationship Federal of man’s irreversible to recommended concerning involved. with any Federal, (four Montana, review enhancement detailed authorized to and describe jurisdiction respect official mining section 552 of Title environment which involves unre- between in Quality proposal State, processes; Copies alternative uses action should it standards, leases in President, to the environ- statement, shall irretrievable local short- courses and to the and local appropri- would be views of such through and the develop consult law or Feder- six oper- long- shall 5, by taking piecemeal actions which demand re- might options. a more strict our com- future the Province ment environmental im- analysis of prehensive App. 73. The NGPRP was designed to produced by would be than therein pact on-going “coordinate activities and build designed for individu- statements policy might framework which help 26, May 1970 the Thus on al mines. guide management resource decisions in the North Central Secretary initiated Release, 3, the future.” 1972, News Oct. attempt to coordinate Study, Power App. 201. Pending completion, its throughout development energy Secretary suspended project, the Mon- unfavora- While States. Central North tana-Wyoming Aqueducts Study, de- Study result- response to private ble signed to availability assess the of water termination, Finding of Fact its ed in development of the vast coal re- 237, 13, (App.) the Sec- Appendix (Fdg.) Fdg. 17, App. sources. acknowledge that de- retary continued In addition to concern about develop- compre- upon based should be velopment Province, Secretary ment of the was hensive, piecemeal, action. than rather also concerned about national develop- Morton, Secretary App. 194. Affidavit ment of a coal-leasing policy.5 early In 30, 1972 he ordered Accordingly, on June 1973 he determined that national im- inter-agency federal-state a massive pact statement on federal coal as the Northern Great study, now known leasing necessary, and that pending (NGPRP), Program Resources programmatic issuance this coal state- social, economic, and potential assess the ment, no coal leases would be issued ex- impacts that cept pursuant ato short-term coal-leas- Secretary would cause. Province of the ing policy public announced to the his Assistant wrote to Secre- Morton 17, February Release, 1973.6 News Feb. taries: 196; 17, 1973, App. Affidavit of Secre- 191; Morton, App. Fdgs. tary reserves coal in the Fort The vast 15— App. purpose 237—239. The of the coal Montana, Region of Da- Union North statement, programmatic now in draft kota, Wyoming pro- Dakota and South form, provide is “to a national overview opportunity excellent for this vide of the entire Federal coal how a re- Department to demonstrate leasing program quality manage on the of the agency can sponsible Federal human environment.” Affidavit of proper re- Sec- resource 191; retary Fdg. App. App. protection. It gard for environmental supplement, 237—238. It will op- as neces- that we not lose this important sary, “appropriate impact reporting single-pur- on a portunity engaging regional basis or for individual incapable de- leases.” pose studies which are 17, 1973, Release, App. News veloping comprehensive information or Feb. suspension policy covering Dakota, Wyoming) apply 6. The does not four to fed- North App. plans Fdgs. approval leasing 90,000 square eral of coal on Indian miles. total of 235, federally-ap- fiduciary responsi- lands. In operating fulfillment of its under areAll lands, Department state-approved mining plans bilities over those of the under proved approve will clear Interior leases where plans. it is not the tribal or Id. While reclamation findings, appears dispose Indian landowner desires to Court District from minerals, issued, of the where the and the terms and condi- were these leases prior tions lease are in the best interest plans approved, to the effective mining landowner, appropriate Indian where environ- NEPA. of date safeguards imposed lessee, mental are on the pros- issued coal has also The Government requirements and where NEPA’s have been covering and lands permits federal pecting Morton, Secretary 193; App. met. Affidavit of 10, Fdg. App. 236. reservations. Indian four 199; 22, App. Fdg. App. see 240. Since the leasing suspension Leasing national coal order of Feb. Mineral enactment the 5. Since 17, 1973, however, Department (1970), seq. the 1920, has not et § 30 U.S.C. of Act any approved coal leases on Indian lands with- for leas- available have been lands federal coal Supp. Fdg. in the Province. 3. only, than for sale. ing rather leases, Despite Interior’s announced moratori- of issuance suspending Besides leases, suspend prospecting permits, um on and determined Secretary also the subject approval to its in permits other activities prospecting any coal of issuance Province, activity federal con- Order some Secretarial notice. further until in the Northern Great Plains. 1973, 198. tinues App. 13, February 2952, agencies, Other suspension policies are na- these While (cid:127) here, responsible. are to some extent tionwide, they only ap- to federal apply ju- Department Agriculture has of prospecting mine leases proval of rights-of-way over issuance risdiction above, suggested how- As was permits. forests, within the national lands over ever, development of the Northern Great Army Corps Engineers has the coal mines is to accommodate navigable over rivers. jurisdiction scope. recognition In limited in not so both refused to consider While broader, environ- yet inescapably permits rights-of-way applications for or related, accompanying mentally activities 30, 1974, they June are now both prior to development, Secretary has coal applications willing accepting approval sharply restricted Agriculture grant them. has received pend- any related action in Province applications rights-of-way for over four ing the NGPRP interim re- issuance of in the Northern Great Plains with- lands Morton, port. According Secretary forests,7 Corps and the national in the leases, granting approval spe- pending application has one Engineers permits types use and all cial navigable over rivers right-of-way lands, rights-of-way public across Moreover, region.8 since June within delivery approv- and sale of water and 30, per- two Corps has issued mining plans relating to coal de- al of navigable mits structures velopment the Northern Great within the Northern waters abeyance pend- Plains will be held in Plains,9 pending applications two and has ing availability of the interim re- permits.10 for such port study from the NGPRP or sub- Secretary mitted the Under re- importantly, More the announced re- prior view and concurrence to execu- placed Interior on strictions tion. large the Province have some ment of through 194; loopholes activity which federal Secretary App. Affidavit of form, summary In proceed. can see Fdg. App. 241. The draft interim (1) leasing the short-term as follows: report September NGPRP was issued applies to new leases program Supp. Fdg. and the final interim Department’s interfere with the does not report expected February to issue in mining plans pre- ability approve Secretary 1975. Answer of Morton to area; (2) existing leases some Supp. Interrogatories, Plaintiff’s Revised under (hereinafter leases be issued short- Ans. No. 24 Supp. Int. itself; (3) leasing policy feder- Morton). term Secretary Price, North Dakota. River near applications rights-of-way the Missouri four are for 7. All Thunder Basin National Grasslands over the Wyoming: by Wycoalgas Id. (water transmis- Co. Square following: were issued to Permits 9. right-of-way); Rochelle Co. sion line Coal (water intake structure for Electric Co. Butte generating Dakota, right-of-way); (conveyor Rich- belt Atlantic Bismarck, cooling plant North near spur right-of- (plant and railroad site field Co. 23, 1974); Sept. Pow- Ottertail issued (railroad spur way); and Rochelle Coal Co. (removal intake structure for of water er Co. right-of-way). No action will be taken on Washburn, plant power North near abandoned Dakota, applications until the Forest Service of these 15, 1974). Oct. Issued Id. Agriculture Department of determines Michigan- applications Pending are from: necessary. If whether (water Pipeline intake structure Co. Wisconsin for coal course, so, will be taken until the no action Beulah, plant gasification North near Supp. Fdg. completed. statement is Development Dakota); Co. Consolidated application Minnko- pending is from the Lake for (water out of Oahe intake structure crossing Corp. line multiple purposes). for a transmission Power ta Id. pact statements have been issued for really is not activity in Province al plans.15 Approval most of these pend- pending issuance suspended ing eight mining plans, well for other NGPRP, upon rather can continue but lands, one of which covers Indian Secretary. of the Under approval Supp. to four-state area. Int. Secretary loopholes The first third of these are and Morton, No. 16. Ans. In addition to on- Wyoming, In the states largest. going approval mining plans, Dakota, Montana, Interior and South Da- North previously approved has plans (the area),11 there are kota four-state by leases issued Bureau of outstanding acreage leases a total Land (BLM), Management 196,652 half of subject ap- to an which acres operational.16 are These begin mines can mining plan; there proved likewise operation without further outstanding leases on Indian action. nine lands 76,650 Supp. with a acres. Int. total of Moreover, despite the short-term leas- Morton, Secretary Ans. No. 14. Min- exceptions ing program, there are approved these ing plans can leas- program leasing moratorium. The al- es, mining thereon, begin upon can and lows a lease be issued concurrence Under Secretary.12 Since the short-term leas- (a) When coal is needed now to main- began, at four ing policy mining least existing mining operation; tain an plans, lands,13 Indian have one on been approved, approval four more (b) When coal is as a needed reserve mines in the Eastern Powder River coal future; production in near pending.14 basin is Environmental im- court, by pending interrogatories order of this resolution of 11. Some of the are addressed 3, appeal. Order filed 1975. Jan. pre- to this four-state area rather than to the Supp. cise confines of the See Province. Int. Impact have been issued for 15. statements Secretary Morton. While another coal re- plans by Resources, submitted Westmoreland gion, Rocky Province, Mountain covers Company, Peabody and the four mines Coal parts Wyoming, of Montana and there is no River basin. See the Eastern Powder notes 13 suppose presented reason to that the thus data validity supra. & 14 of the Westmoreland assessing, qualita- is not useful for at least Redding Morton, sustained in v. statement was way, activity tive within the Northern Great 1, (D.Mont., May 1974), 74—12—BLG Civ.No. Plains. Cir., appeal pending, 9th No. 74-1984. The affirmatively Eastern together River mines were 12. Powder considered Interior must act three points so begin operations. in one that the before a mine can First, these cumulative effect of plans related prospecting permit, it must issue a analyzed. usually preference To assure full con- right could contains a impact, any subsequent Second, total the statement sideration of also lease. it must issue Finally, issuance railroad approve considered mining plan. lease. it must Burlington right-of-way activity Northern Inc. suspended, The first is now the second Transporta- governed Chicago by and North Western leasing policy, the short-term Company for a new railroad route unimpeded. tion be- the third continues Douglas, Wyoming tween to serv- Gillette Mining plans approved have been for leases mines. final ice the new environment Company held Campbell the Amxas Coal statement was issued to the Council on Envi- County, Wyoming (72 acres); Peabody Coal (CEQ) Quality ronmental on Oct. Company County, (640 in Rosebud Montana .any no There has been contention acres); Energy County, Western in Rosebud comprehensively statements these individual (150 acres); Montana and Westmoreland Re- study of coal County, (245 sources in Harden Montana Plains, and our in the Northern Great exami acres). The Westmoreland lease is on Indian statements makes clear nation of the Supp. Secretary Morton, lands. Int. to Ans. not do so. Cf. Scientists’ Institute do No. 15. Information, (SIPI), Inc. v. AEC Public U.S.App.D.C. Approval pending mining plans sub- 395, 408-09, 481 F.2d Company, mitted Atlantic Richfield Carter (1973); Natural Resources 1092-1093 Defense Company, Corp., Oil Kerr-McGee Coal Council, Morton, U.S.App.D.C. 5, Inc. Wyodak Development Corp. Resources While 12-13, 834-835 See also Secretary has indicated his readiness to Infra. notes 23 & 36 plans, Supp. Secretary act on these Int. supra. 16. See note 7 stayed Ans. No. action has been very closely Plains that are tied to Great (c) When the land to be mined will in development of any future Prov- be reclaimed in accord- cases powers These ince’s coal resources. are stipulations with lease ance not affected the short-term coal-leas- provide for environmental will only by limited ing policy, and are reclamation; and land protection pending Secretary’s stated forbearance NGPRP, a forbearance issuance of the (d) When evaporates upon Under Secre- covering proposed approval project. a stated tary’s prepared has when re- lease been Thus, pending mining in to the addition quired under the National Envi- above, discussed there now plans Policy Act. ronmental Department appli- pending before the 17, 1973, Release, App. 196— News Feb. rights-of-way for coal-related cations 197; Fdg. App. 238—239. Since insti- Id., Plains. the Northern Great across program, of the four leases have tution rights-of- 21. Two coal-related Ans. No. nation, throughout al- issued been granted since June way have been though are in the Northern Great none region, 1974 in the four-state but both Nonetheless, Supp. Fdg. 1. Plains. the Northern Great Plains. are outside competitive applica- are 42 there lease Id., Additionally, Ans. No. 20. total of pending region in the four-state tions applications pending are now before 272,126 acres, prefer- a total of and 80 Corps Engineers, Department, right pending region ence leases in the both, for water option contracts or 201,668 Supp. for a total of acres. Int. Province, although no such contracts Morton, Secretary Ans. Nos. 7 & 8. July since 1971.18 have been executed proved willing apply Interior has acre feet annu- two million Well over exception leasing moratorium in Fdg. Supp. at stake. 7. al water use are the Northern Plains. July On Department 1974 the offered for sale a sum, In there are pending applications covering approximately lease 320 acres for mine leases mining plans, Stanton, south North Dakota. The rights-of-way public lands, over naviga- lease was not issued because no bids waterways, ble forests, and national Supp. were received. Int. Secretary rights for water in federally-controlled Despite Ans. No. 2. the number throughout waters the Northern Great applications, however, pending Interi- Plains. Few such applications have been says it is not now considering or offering granted in the last years two as the Sec- any further leases in Province under retary has preferred studied the leasing Id., short-term program. ment region. Yet the time' when 3. Secretary Ans. No. anticipates action will be taken is close at hand. leasing the short-term program will programmatic The final coal EIS and the in effect “at continue least until after report final interim of the NGPRP will the issuance of the final program- coal shortly, issue if have not issued al- matic EIS and the ready. applications flood of will system size, planning to determine ripe then be approval, and the mas- timing location future coal sive of the Northern Great Id., Ans. leases.17 No. 4. The final coal begin. Plains will programmatic expected Id., shortly. Ans. No. 30. issue II Plaintiffs-appellants Lastly, Interior are a power has collection of over devel- organizations opment protection interested Northern leasing policy Sept. Hearings will end its before the Subcom. on Miner- short-term 17. Cf. Materials, 1974). als, and Fuels Senate Com- Affairs, Interior and Insular 93rd mittee Sept. application 10, 17, (statement was denied in (1974) such Cong., One Sess. 2d Fdg. Supp. Department of Interior Horton Sec. Ass’t existing no They brought environment. suit on Federal members, program, and their plan, behalf of themselves project, or 727, regional other ‘federal action’ see Sierra Club U.S. with- 1361, (1972), meaning 31 L.Ed.2d 636 on in NEPA S.Ct. Section 13, 1973, 102(2) charging Depart- development that the for June of coal Interior, Agriculture, of the or other ments and resources” in the Region. 8, (the appellees) Army Fdg. App. federal had au- 235 (emphasis origin- al). of coal thorized resources in The court then held that Region (the the Northern Great Plains action, regional mul- absence Region), Wyo- defined as northeastern tiple applications for fed- Montana, ming, eastern and the western eral action in connection with individual Dakotas, in Specifi- violation of NEPA. private projects which are unrelated to appellants cally, charged that except NEPA one another geographically do not precluded development Region regional either ex- constitute federal action cept preparation comprehen- after regional impact mandate a statement. impact statement, (Concl.) 4, sive environmental App. Conclusion of Law Likewise, 245. systematic interdisciplinary studies 102(2)(A) NEPA Sections and development, study (D) appro- require coal and do not regional approach priate alternative courses of subject action. 42 unless the federal action to those 4332(2)(A),(C), (D). Appel- requirements U.S.C. and already regionally § based. sought declaratory judgment 5, App. lants that Concl. 246. Finally, the court violated, being injunction NEPA was an ruled that study NGPRP “is a barring future federal action in program the Re- and not a for gion requirements ment,” and, until such, of NEPA it does not “ha[ve] met, were and an compelling order life” within meaning of NEPA. appellees comply 9, with App. NEPA. Concl. 248. Even if a 23, Complaint App. existed, ruled, 22—23. A plan the court NEPA 22— mining companies, number of coal utility prohibit would proceeding not with indi- companies, and, case, and the Crow Tribe of Indi- vidual appel- (the ans appellees), intervenor all having lants injunc- would not be entitled to an Province, interests in tion since have not shown the likeli- were allowed to intervene as irreparable defendants. hood of harm. Concl. 10 & 11, App. 248. discovery appellants limited

After 81, 1973, moved, August Appellants summary appeal on filed their notice of 19, App. 26, on March judgment. 66. The federal and On March appellees appellants’ filed the District intervenor various cross- Court denied mo- summary judgment injunction pending motions tion for an appeal, and filed, 164, 12, on the and judgment pleadings. App. appellants April then on 168, 14, 1974, February a motion in this court 171. On 1974 the Dis- for an in- junction appellants’ pending appeal expedit- trict Court denied motion for hearing. summary judgment granted appel- expedit- ed The motion for an hearing finding, granted 17, While and recit- ed was lees’ motions. June above, court, outlined 1974. While the most of the see Leventhal ing facts Tamm, JJ., supra, denied the at---, motion for the injunction pending 861-866, appeal broad because 514 F.2d at District Region, that the adequate knowledge concluded as de- it lacked Court of certain facts, appellants’ complaint, dispositive “is not it spectre fined noted “the region, or entity, significant large area has been harm to tracts of valua- remains,” the Federal Government ble wilderness still defined purposes urged or executive action for statute the federal to exercise program, project, or ac- any Federal “substantial restraint” in continuing de- Moreover, 7, Fdg. App. velopment de- of coal resources in tion.” the Re- above, “[tjhere gion jurisdiction the facts outlined lest spite the court’s to decide conclusions of law. Thus we deem need for the court to have found these purposes, additional be, practical June filed Order original defeated. facts inconsistent its argument conclusion. After oral we scheduled for Argument granted appellants’ motion for a limited mid-October, 1974 the on October but pending decision, injunction and or- Nichols, JJ., court, or Leventhal Interior, Secretary argument dered, sponte, rescheduled dered sua order, pending further to take no action meanwhile re December to the District manding the record Court concerning mining plans and railroad evidentiary hearing de a further for rights-of-way ready approval for in the ques factual answer certain signed to Eastern Powder River coal basin and to make the record as current tions so as discussed in the Eastern Powder River parties were allowed 3, possible.19 January as EIS. Order filed 1975. Hav- supplemental memoranda concern ing file the benefit of the District Court’s supplemental District ing original the Court’s supplemental and findings, and provid District Court has findings. The original supplemental briefs the and to the certified full answers us with parties, ed we must now memoranda original has adhered to its questions, but to the merits.20 turn were as fol- 19. The supplemental questions was the area to be covered the by 8. How lows: in of coal resources EIS for the development Powder River Basin the Eastern Coal the on 1. Is limitation the issuance the by and how was it determined that an defined, United States of coal leases announced on that area? EIS was for appropriate still in 17, 1973, effect? How February leases have been issued for lands many Regarding state- 9. empact region the Northern Great Plains since Feb- projects for ments individual in the Northern 17, 1973? ruary area, Great Plains where the statements have been issued after 17, 1973, or February of the issuance 2. Is the suspension by projects for that were commenced, prepared prospecting States of coal United permits after that time— on still in ef- 13, 1973, announced February prospecting more a. Provide one or representative fect? How if coal many, any have been issued in the Northern statements. permits region Plains since 1973? 13, Great February b. Do the statements attempt provide an assessment of the cumulative leasing on Indi- extent has coal 3. To what governmental action in the surround- region Plains in the Northern Great lands ing area? the In- approved by Department been 1973? 17, since February terior c. Do statements take into account ecological setting created by private for for any permits Have applications in the area? action rights-of-way for- lands within national over region the Northern Plains government ests Great d. Has devised any pro- or acted cross-referencing among by been considered upon for cedure the in- Agriculture 30, since June Department dividual statements? for Have any applications permits 1974? Order, 14, Oct. navigable rights-of-way rivers in the over can here of two dispose preliminary 20. We region been con- Great Plains Northern given and cre- defenses raised by appellees Engi- acted Corps or upon sidered the District Court, namely, dence whether June 1974? 30, neers since justiciable case or contro- this case presents Plains Resources Northern Great 5. Has organizations and whether versy, appellant Is Program been released? interim report standing to sue. The District Court held have regarding action contemplated further any “the courts will review the that not validity program? supporting statements or studies until final con- United States Government 6. Does NEPA actions taken under Section Federal future envi- of any the preparation template agency 102(2) and until after final action has than statements —other ronmental with taken individual been respect projects individual statements —for project,” 247, that, Concl. and there- App. Union the Fort area, Great Northern no case or had been stated. fore, controversy subregion thereof? Formation, or 247. While the court is correct App. Concl. granting general is the status law NEPA proposition What rights challenges contracts and water individual can water brought Plains area? final only after approval Northern ate for intervene, the courts and do so suffi- ciently early NEPA are purposes project, g., see e. Committee Route 7 Stop thwarted. (1972), D.Conn., 346 Volpe, F.Supp. (1) seems to court assume that We think that in a case like only this, individual where (2) allege challenged, actions can be appellants the individual appellants steps allege do not taken in that final actions have Northern Great Plains, occurred. considered together, Both of these are constitute assumptions erroneous, action, find that we case or have stated appellants a case is stated when controversy the chal- lenged alleged, along individual controversy. actions are treating a reasonable basis them below, clear in text as will be made First, cumulatively NEPA, under there is a claim that a only comprehen- holds not firmly SIPI “significant being resources commit- challenged program NEPA, under can be sive ted.” at 403 n. U.S.App.D.C. 29, 481 F.2d brought have to suit does not but at 1086 n. 29. We think appellants have met action. Even an attack on an via this test. As in the issue SIPI, they raise is Metal Fast Breeder though the AEC’s Liquid “whether [develop- (LMFBR) program was in “the Reactor ment of the Northern Great Plains] present- stage and no specif- research (emphasis ly under NEPA.” Id. signifi- implementing which would action ic original). On this there issue, is “a substantial had been yet affect the environment cantly having between controversy, parties adverse 15, 156 SIPI, note taken,” supra legal interests, sufficient immediacy re- the court found the 481 F.2d at ality.” Maryland Casualty Co. v. Pacific Coal program which, for life,” purposes “has & Oil Co., 312 273, U.S. 61 270, S.Ct. 510, 512, make a case or con- to NEPA, sufficient (1941). 85 L.Ed. 826 also See Abbott Labora- troversy. tories v. Gardner, 387 U.S. 136, 87 148-149, under The instant case is these ripe princi- (1967); 1507, S.Ct. 18 L.Ed.2d 681 Eccles v. since the tendered for review issue is ples Peoples Bank, 426, 333 U.S. 434, 68 641, S.Ct. whether on the statement AEC’s (1948); 92 L.Ed. 784 Ashwander v. TV A, 297 program LMFBR is under presently U.S. 288, 56 324, 466, S.Ct. 80 L.Ed. 688 * * * long- the context NEPA. In (1936). justiciable Thus we think case or program range ju- is involved here, such as has been and controversy stated the District with dicial review of NEPA is compliance holding Court erred in otherwise. Of course, significant stages at necessary at re- the fact that do not appellants fully prevail being committed, lest sources stat- the merits does not operate, to retroactively, ute’s basic thwarted. expunge purpose the controversy. 29, n. 481 F.2d at 156 at 403 U.S.App.D.C. The second preliminary issue concerns ap- original). (emphasis As we shall 1086 n. 29 standing pellants’ alleged, to sue. Appellants think to below, appellees’ plans make clear we Complaint 3-9, 3-5, and the App. District HU the Northern Great control Court found, to state a case have sufficient life Plains organizations members [m]any plaintiff controversy. engage live, work, in recreational activities, allege rights own land and hold surface on or im- Second, appellees’ appellants adjacent Plains consti- in the Northern Great to sites of coal min- mediately conduct ing “major so that a NEPA action,” and related activities in the tutes a federal four-state * * Actions, both and area *. is past statement required. alleged. While have been imminent, Fdg. alleged 1, App. further Appellants rule in cases NEPA will typically courts of coal resources in the the es- act, after decision until Northern Great Plains cause would direct is that complaint appellees sence of appellants’ harm to various of their members’ economic, although act, decided have already environmental, recreational, and aesthetic in- Again, SIPI is much. not admitted as have Region. terests Complaint, 10, 37, HU recognized, necessarily, SIPI directly point. “injury 5, 20-21. App. Such in fact,” if judicial intervention in deter- the propriety proved, meets the broad plainly test of stand- mining While it spoke dictates of NEPA. ing outlined in Sierra Club v. Morton, 405 U.S. judicial determination expressly (1972), 727, 92 1361, S.Ct. 31 L.Ed.2d 636 156 was ripe, U.S.App.D.C. time for an EIS in United v. applied States 412 SCRAP, U.S. 1094, the principle 481 F.2d at at 93 S.Ct. 2405, 37 L.Ed.2d 254 See judicial holding well for deter- SIPI’s apply also SIPI, note 15, 156 supra engaged the Government mination 403 n.29, 481 F.2d at 1086 n.29. In this case, “major while in Therefore, action.” standing however, can deemed to have the Government is for the first instance it been proved only by Northern appellant is neces- decide whether an impact (NPRC). Resource Council The issue of stand- fails improperly where the Government sary, ing as to all was raised appellants deni- effect of individual ac- to treat the cumulative als of the federal and of appellees, various “major it action” is appropri- tions as a intervenor as well. Answer of feder- 870

III presented the first tion was issue courts, capable was one fairly to the cumulative applicability NEPA’s See, ready g., resolution. e. v. Scherr early was an actions effect of individual Cir., Volpe, (1972); 466 F.2d 1027 Citi- cases, issue in the Organized Environment, zens to Defend require definition to has continued S.D.Ohio, Volpe, F.Supp. Inc. v. impact state- An date.21 (1972); County Monroe Conservation course, only required, ment Council, Cir., Inc. v. Volpe, 472 F.2d and other ma- legislation “proposals (1972); (Civ. Crary D.D.C. affect- significantly actions jor Federal 11, 1975). order issued No. Feb. 75— the human environ- quality of ing the * * difficult, readily but also re- 102(2)(C), 42 More *.” Section ment solved, question added). was the whether (emphasis 4332(2)(C) § U.S.C. various “legislation” cumulative effect of federal ac- meaning While tions, minor, individually “ma- could to- clear, precise content of fairly “major open gether constitute federal ac- often actions” is jor Federal courts, by the was, purposely, aided Guide- apparently tion.” question, of the Council on Environmental without definition. lines by Congress enacted dam, (CEQ), body Quality established an individual When —a agency compliance review parking plan NEPA highway, —crossed Act, major ae- 101 and 102 of from minor to boundary line Sections standing. “injury in fact” is sufficient SCRAP, States v. 412 U.S. at United supra, See, 3-10, 37, App. al appellees, flU 93 S.Ct. 2405. See also New 688-690, Jersey Public Nebraska g., intervenor answer e. A.P.T.A., Inc. v. Prudential Life Inc., Chapter, None- 138-139. 3-4, District, App. Power flfl Co., U.S.App.D.C. 40, 44, Ins. in- NPRC, no appellant theless, except (1974) (“Standing need 504 not be found- 500, standing, its to prove evidence troduced even a rock; ed on a or cobweb pebble may finding made no express District Court and the do.”). inju- will at least minimal That there be standing, presumably had that any appellant course, is uncontroverted. Of fact ry challenge to appellants’ no there was because statement has been an impact approved standing summary motion in appellees’ see note 15 mine, the Westmoreland supra, standing is an to sue judgment. course, Of injury, nor does it does not affect appellants’ of action of a cause element essential standing to seek a them of comprehen- deprive “alleged,” well as “demonstrated” must Region, the entire since the sive statement SIPI, supra controverted. where particularly injury them of caused by development 481 29, at 403 n. 156 15, note injury mine is of the re- Westmoreland part v. United States n. 29. See also 1086 F.2d at gional would cause. Since appel- 689-690, 93 S.Ct. 412 U.S. at SCRAP, supra, “injury fact,” has demonstrated lant NPRC District Court appel- to the On remand it does not be contested appear and since standing their evidence of introduce lants injury is within the zone of interests District Court opportunity to allow NEPA, to be see Data protected intended continue to deny if issue appellees rule on the Processing 150, Service v. 397 U.S. 90 Camp, 405 U.S. Morton, v. supra, Sierra Club it. Cf. (1970), 25 L.Ed.2d 184 and Barlow v. 827, S.Ct. 92 S.Ct. 1361. 8, 735 n. 159, 832, U.S. 90 S.Ct. 25 L.Ed.2d Collins, 397 into evidence two affida- introduced NPRC standing (1970), had we hold NPRC 192 Mul- Chairman, its Vice Christopher vits from bring bring and to this below, the suit ap- affidavits relate to the directly pro- ler. The peal. Resources coal mine on Westmoreland posed 15 Muller land. See note supra. Crow-ceded the converse 21. A related essentially problem, organization members of his identifies those major determining ac- when one, in the vicinity who reside segmented actions into smaller tion should environmental, aesthetic, adverse mine and the filing allow impact as to so members effects on those and economic g. Individ- See, actions. e. Named the smaller of the mine. Affidavits construction continued So- Members San Antonio Conservation ual Muller, 7, Nov. 1973 and Dec. of Christopher Highway Cir., 5 v. Texas Department, ciety to con- 1973. While 21, attempted (1971); De- Natural Resources F.2d 1013 446 affidavits with an affidavit the Muller trovert D.D.C., 388 F.Supp. v. fense Council of Westmoreland Re- Connelly J. from W. (1974); 7 Route v. to Stop 829 Committee asserting the adverse effects on sources Lookout Alli- note 20. Cf. Indian supra Volpe, Affidavit of W. J. minimal, were appellants (1973). 11 Cir., 8 484 F.2d ance v. Volpe, it is that minimal 1974, clear 11, Jan. Connelly,

871 difficulty requir courts have had no consistently held 4344(3), have § U.S.C. ing impact “major statements for would be Feder purposes NEPA no more al actions” that were than the were not impact if an violated cumulative effect of related minor feder The Guidelines cases. required in such al actions. Natural See, Resources statutory term “ma- g., e. that the clear make Grant, Council, E.D.N.C., assessed Defense Inc. must be actions” jor Federal (1972); overall, F.Supp. 356, People 341 cumulative 367 a view “with Laird, supra; Enewetak v. proposed, related Minnesota the action impact of D.Minn., area, Butz, 584, F.Supp. PIRG v. 358 projects in the Federal action (1973); States, 622 v. United contemplated.” 40 SCRAP actions and further D.D.C., 189, F.Supp. (1972) 346 200 (1974). 36 Fed. 1500.6(a) Cf. C.F.R. § (three-judge court), reversed on (the original other (1971) Reg. grounds, ex- U.S. S.Ct. further Guidelines guidelines).22 The (1973)(“the necessity pre L.Ed.2d 254 actions can be minor federal plain how paring impact statement cannot be “cumulatively considerable.” * * * or postponed avoided This can occur when one or more breaking into compo minute [the action] period years puts over a parts”). nent Named Individual' Cf project individually into a minor but Members of Antonio San Conservation resources, collectively major when one Society Department, Highway v. Texas involving decision a limited amount of Cir., 1013, 1022-1023, cert. de money precedent is a for action in nied, 403 U.S. 91 S.Ct. larger represents much or cases a deci- (1971). L.Ed.2d 711 sion in principle about future courses action, several when Government problem The next to reach the courts agencies individually make decisions involving cumulative of related partial about aspects ac- logical activities was also the next step. tion. If the cumulative effect of individually 1500.6(a) C.F.R. This inter- § minor federal could actions constitute a pretation statutory term is emi- major action, could the cumula- nently reasonable, both because NEPA admittedly major tive plainly mandates consid- actions do so as.well? Even if individual eration of the of all effects federal ac- being prepared statements were tions, 4332(2)(A), 42 U.S.C. which con- § actions, for the individual would a com- sideration if impact would be defeated prehensive for the statement cumulative required only statements were for indi- necessary? action also be The answer size, “major” of and be- vidual provided by was court’s SIPI deci- interpretation cause other would Finding distinguishing sion. principle no hatch, provide escape through an agency separating assessment the cumulative projects, “major” subdivision of from the impact of minor individually actions impact requirement. statement impact from the cumulative of individu- Almost every project can be divided ally major actions, we held that NEPA’s into smaller parts, some of which requirement impact statement is not lim- might any appreciable not have effect Rather, projects. ited to individual on the environment. court would SIPI we that the demanded Atomic En-

be forced project apart to take each ergy comprehen- prepare Commission * * piece by piece *. impact Liquid sive for its statement Met- People Laird, D.Hawaii, (LMFBR) al pro- Enewetak Fast Breeder Reactor F.Supp. 811, (1973). 353 gram, 821 Thus even an though individual state- * * * Although lack the Guidelines force quality,’ CEQ has of the environmental law, lightly suggest we that the should “not County Plan Greene misconstrued NEPA.” Council, responsibility Cir., 412, 421, entrusted with FPC, ning 455 F.2d Board v. 2 recommending developing poli- national denied, 93 34 cert. S.Ct. U.S. improvement promote cies ‘to foster and note 24 infra. L.Ed.2d See ment do not understand prepared had been for the one ex- reaffirm it here. We isting dispute validity. In plant fast breeder demonstration SIPI’s fact, that, compliance though we note even Commission SIPI, planned CEQ and with Inte- to issue an individual statement Guidelines facility for each and test rior has itself a national coal plant future decided program. programmatic necessary within statement impact assess the broad its national takes an unnecessari- Commission Likewise, coal development policy.23 ly to NEPA in approach crabbed as- applications when confronted with suming impact statement approval mining plans rail- of four and a process particu- designed subregion road one right-of-way in analysis lar facilities rather than for Plains, the Northern the Eastern of the overall effects of broad agency basin, proper- Interior Powder River coal Indeed, programs. quite contrary ly decided cumulative envi- to assess the is true. impact of ronmental individual 402-403, 156 U.S.App.D.C. at F.2d impact projects through state- 1086—1087. Natural See also Resources supra. ment. note 15 See Morton, supra (em- Defense Council v. phasizing comprehensive the need for en- In SIPI the admitted it was en- AEC planning). approach vironmental SIPI’s gaged program. in the LMFBR We firmly contemporaneous aby echoed must now decide whether extend SIPI First Circuit In Lynn, decision. Jones v. require impact comprehensive state- Cir., (1973), the court held responsible ments in situations where preparation statements on agencies deny they engaged in a within buildings an urban re- program. Appellants broad would have newal project impractical would both us hold that is nec- and, unless the individual statement essary “precisely in this case because the “cumulatively significant evaluated the prepared any have not impact” of the entire role in the plan for coal in the North- project, in violation NEPA. Instead a Appellants’ ern Great Plains.” brief at required. statement was They rely primarily following on the would not seem sensible adopt [I]t CEQ provision from the Guidelines: piecemeal approach which HUD give Agencies should careful atten- adopt, whereby seeks to prepare will tion identifying defining separate- modified purpose scope of the action which ly for each construction as a appropriately would most serve as the mortgage application insurance subject of the many statement. In filed, approach akin to equating an cases, program broad statements will appraisal of each tree to one of the to assess the order envi- forest. ronmental a number effects of of indi- Id. at 891. See also Conservation Socie- given geographical vidual actions on a ty Vermont, of Southern Inc. v. Secre- (e. g., leases), area coal or environ- tary Cir., Transportation, impacts generic mental are that or (1974). common agency to a of series actions (e. g., or waste handling maintenance We holding think that SIPI’s practices), impact or the of a over-all necessary statements are for “broad large-scale program or chain of con- agency programs” “partic addition in to (e. templated projects g., major based, firmly ular facilities” was and we supra by note 21. suggested Defense Council v. It is not that this statement, the national programmatic For the limitations of national statement is sufficient- Statement, Impact ly see Draft Environmental for a detailed to substitute state- Leasing Program Proposed at Plains, Federal covering Coal ment the Northern Great 1-6, supra. 1-7. Cf. note 15 our examination draft statement of the makes it clear Cf. that it is not. Natural Resources minimum, At a the courts must lengths highway opposed to reserve right Subsequent analyze federal state- actions segments). small if, fact, determine comprehensive in a major individual actions will ments on program, labeled, way such have however necessary where actions under proposed. or v. significant- impacts not See SCRAP United States, supra, F.Supp. in adequately program evaluated statement. firmly This supported conclusion is recent 1500.6(d)(1) (1974) Second Circuit (emphasis decision in C.F.R. § Society added). Conservation Appellants guidelines read these Southern Ver- mont, Inc. require comprehensive impact Secretary of Transporta- a state- tion, supra. In group Conservation Society ment whenever a upheld court geographical- related the determination projects federal are District environmentally, programmatical- Department Court that ly, Transportation anaylsis proceed extensive of federal could not ly. After Plains, improvement segment in the Northern Great of a 20-mile activities appellants comprehensive “the and U.S. Route 7 until a conclude im- pact relating statement prepared federal coal was actions the en- tire length re- 280-mile ment in the Northern Great of Route 7. The held, although District Court gion related in all three of these so it ac- knowledged ways.” Appellants’ Appel- brief at there was no present plan road; argue lees that a statement overall found, however, only itself that ultimate when the Government has conver- sion of Route 7 into a designated “pro- superhighway at issue a the activities was goal a CEQ held the federal gram.” They claim the Guidelines defendants and that “possible it was support approach, arguing accomplish- ref- legislative ment with program ap- erence to the need for “broad proval long-range period a over means the Guidelines of time statements” * * D.Vt., F.Supp. define when broad statements are need- Since ultimate pre-existing programs. ed in Intervenor conversion was expectation the federal appellees’ at 31 n. 1. defend- brief ants, completion and since of the 20-mile reject appellees’ We constricted segment at issue would constitute an ir- reading of the Guidelines. Whether reversible and irretrievable commitment comprehensive is re generate resources that would more quired simply turn cannot on whether traffic thereby synergistic create compre agency has denominated pressure construction, further a “program.” hensive series of actions District Court ruled argument analogous This in proposed, action was within the meaning cases when early NEPA de 102(2)(C), of Section and that the time nied that related minor actions constitut ripe comprehensive for a ed, toto, major action. We did not statement. agreed. Second Circuit in holding hesitate at that time that ma we jor While thus feel despite firmly actions were involved denials; grounded inquiring into the agency appropriate, where we actual na actions, ture appel will hesitate now. fact of an Government’s go lants not end contro would have us further denial does than this. Essentially, versy, would have the points why but rather the con courts require filing comprehensive troversy Surely exists. result program no if a SIPI would have been different had simply compre way. Admittedly, should be under the AEC denied CEQ Guidelines, involved, which are program was entitled hensive great respect,24 being sweep do seem to underlying other facts the same. problem statutory interpretation given by “When faced with a the statute construction, great agency charged this shows deference Court officers or with its administra- 874 Moreover,

broadly. are dicta in when it refuses ning there on the Government duty Indeed, suggesting cases to do so itself. NEPA does de- plan imposed on comprehensively policy practi- can be “to use all it federal clare * * * duty apart improve Government from cable means and comprehen- functions, plans, pro- impact statement for coordinate Federal file an instance, Re- grams protect Natural resources” in order to For and plans. sive Morton, su- 101(a), v. 42 Council the environment. Section sources Defense 4331(a) (emphasis added). U.S.C. pra, suggests: § NEPA’s provisions substantive may be What NEPA infused into the deci- enforced in procedural court as well as its was a di- sion-making process in 1969 requisites.25 Calvert See Cliffs’ Coordi- rective as to environmental nating AEC, v. supra, Committee 146 imple- that was meant to statements U.S.App.D.C. 38, at 449 at F.2d Congressional objectives ment the Agency violation of this substantive duty by a failure to improve coordination, compre- Government plans its or coor- approach hensive to environmental might dinate its justify judicial actions management, a determination to directive to coordinate various fed- pollution problems face “while eral comprehensive actions into one ma- manageable proportions are still of jor action, followed a directive and while alternative solutions are still ordering comprehensive issuance of a im- persist available” rather than in envi- pact statement for that newly-comprised decision-making ronmental wherein action. “policy is default and established inaction” and environmental decisions approve, in theory, legal While we “continue to in small be made but appellants’ argument, basis for we note steady perpetuate increments” that practical difficulties in its broad ap- past being without mistakes plication. geo- An infinite number of dealt “they with until reach crisis environmental, graphic, programmatic or 91st proportions.” S.Rep.No.91 296, might — interrelationships among be found (1969) Cong., p. 1st Sess. the various individual federal 14, U.S.App.D.C. 148 way at 458 F.2d at throughout country. 836 under (emphasis added). broadly, Surely, however, Viewed an infinite number of language plainly contemplates imposing comprehensive plans, comprehensive requirement statements, plan- required. are not 16, TVA, 1, Cir., 1164, Defense Fund Tallman, v. 85 6 468 U.S. F.2d 380 Udall v.

tion.” (1972). supra. 1178 801, (1965). See 792, also note 22 See 616 13 L.Ed.2d S.Ct. 415, 397, Wyman, 90 S.Ct. U.S. 397 Rosado v. Allen, agency 25. Six found circuits have action (1970); 1207, v. Zuber 442 25 L.Ed.2d provisions in violation of 314, the substantive 192, 168, 345 24 L.Ed.2d 90 S.Ct. U.S. 396 However, enjoined. NEPA strictly charged the action (1969). is not While CEQ arbitrary capricious. must be found NEPA, charged to be with administration Committee, Coordinating See appraising Calvert Cliffs’ reviewing duty with AEC, 33, 39, Inc. statute, v. 146 449 F.2d so is compliance agency 1109, (1971); 4344(3). 1115 Environmental Defense § 42 U.S.C. deference. entitled to Corps Engineers, Cir., here, Fund v. when, 8 470 F.2d heightened deference This 289, (1972); Froehlke, 300 adopted Sierra Club v. 7 interpretation administrative Cir., 946, (1973); 486 F.2d 953 Conservation legislation. passage Power after soon Froehlke, Cir., Council of North v. 4 Carolina Un Development International Co. v. Reactor 664, Cir., (1973); Lynn, 408, 473 396, F.2d 665 Silva v. 1 Electricians, 81 S.Ct. 367 U.S. ion 1282, (1973); Apache 482 F.2d 1283 Jicarilla (1961); v. 1529, United States 924 6 L.Ed.2d Morton, Cir., Tribe 91, 96, 671, of Indians v. 9 471 F.2d Zucca, L.Ed. 351 U.S. S.Ct. Contra, (1973). National Helium Truck (1956); American States v. United Cir., Corp. (1971). 455 F.2d 650 Assns, ing Accord 310 U.S. consistently Thus an could be found to have ingly, deferred the courts have plan comprehensively SIPI, failed to supra violation of guidelines. note See CEQ U.S.App.D.C. gross 402-404, NEPA unless that failure was so as to be at 1086- FPC, arbitrary capricious. Planning 1088; County Board v. Greene 421; Environmental supra 455 F.2d at note permitted approved intended Moreover, by or agency. the Guidelines the for SIPI, in the need supra, agency planners guide course, is, the F.2d It at 1088. Approving pri- statements. leases to impact organize vate supposed parties granting per- that are licenses agencies throughout private parties mits to federal are familiar —and various come into litigants who examples major not country, fed- well-established— eral opposition See, seeking, possibly actions. Davis v. g., e. court Cir., into another, (1972); to force F.2d Greene one lights; one according- County Planning FPC, to their Board v. supra; action instance, a coal seek, Scenic Hudson for Preservation might Conference Plains, FPC, Cir., Northern (1971); 453 F.2d 463 for Cal- region, and vert four-state Cliffs’ Coordinating another for Committee v. Wyoming AEC, clear, alone. It for the state supra. is we do not another comprehensive a to force understand the appellees of NEPA federal to con- Use it, most, as a means test unwilling agency all, ongo- on an if not plan ing com- pending to undertake agency actions in the Northern to force might in- subject Great Plains are ap- to federal prehensive discretion, proval while agency thereby and are unduly federal actions. trude day-to- That the courts these overly involving major actions are and that running the Government. significantly day business of affect the human envi- ronment also is Certainly not contested. appellants’ say is not to This subject actions in the Region to Section have noted We merit. claim without 102(2)(C) include the approving min- legal their the persuasiveness above ing plans, the granting of rights-of-way only would the courts arguments. Since lands, across federal granting and the violation of to be in agency find rights water federal from reservoirs. if its NEPA provisions of substantive Thus the relevant question is not wheth- was arbi comprehensively to plan failure er federal being actions are taken dangers suggest capricious, trary or Plains, the Northern Great nor is it above ed would minimized.26 And whether necessary statements are judicial where there be instances those question actions. The justified. Surely intervention is we are appellees whether the federal have treat- willing compre the less hold that ed those actions regionally way in such a planning agency hensive chooses to they comprise, cumulatively, a ma- do, the requires less NEPA to do. jor federal action. Such reductio ad absurdum would We believe the evidence mandates an However, mockery make a of the Act. affirmative answer. appellants’ we need not decide claim e The evidence is overwhelming th here. We think facts record years have for been en and as found the District Court estab deavoring develop plan regional development lish development of the coal resources in the contemplated Northern Great Plains is by Northern Great Plains. The North Cen appellees. proposal The tral Study, Power Montana-Wyo for such would constitute a ming Aqueducts Study, and the North proposal major federal action within ern Program Great Plains Resources 102(2)(C) meaning and de Section were all purpose. undertaken for this mand re issuance of purpose of the aborted North Cen gional impact statement. Study promote tral Power was “to beyond It question that feder pow coordinated of electric al action within meaning of the stat supply er in the North Central United ute includes not action undertaken Report I, Id., States.” of Phase Volume itself, but I, also action “key at 2 resource” note 25

26. See supra.

876 power supply development of that was leasing concerning coal in the national Aqueduct Apprais- The coal. Id. stalled Region. reported in the He forests Report, recommending al after construc- prerequisite leasing “a to further should large-capacity aqueducts tion of to serve plan development be a for coordinated resulting from the industrial needs de- adequate consistent with environmental fields, velopment of the coal concluded: protection public interest.” and the 78, App. (1973). Cong.Rec. 1504 apparent develop- The year Secretary That same Assistant require will ment that full-scale com- Manage- the Interior for Public Land prehensive studies be initiated in the ment congres- Harrison Loesch told a future, cooperation near with the present- sional committee that others, “[w]e orderly states and to assure an ly investigating necessity, and we manageable growth pattern and necessity, compre- think it is a of rather minimize adverse environmental ef- study planning hensive and effort in the impacts. fects and large Wyo- coal basins of Montana and (1972). Id. at 31 Now the NGPRP is ming.” Leasing Disposal Federal and way, an interagency, under federal-state Policies, Hearing Before the Senate objective primary task force whose provide is “to Committee on Interior and Insular Af- comprehensive information and a fairs, Sess., Cong., 92d 2d analysis that place can be used to potential impacts development of coal The NGPRP is the response perspective thereby into and assist the expressed these concerns. It is the people of the Northern Great Plains and Government’s attempt to formulate a re- management the Nation in the of the gional program that will enable it natural and human resources of this re- control development of the Northern gion.” Report NGPRP Draft Interim at Great Plains. This is demonstrated not (1974). Secretary 1—4 Morton tells us only by the goals stated program programs that all three of these were itself, U.S.App.D.C. supra, see “attempts to development by control in- -, 875, F.2d at but by the companies.” dividual Affidavit of Secre- suspension activity Region pend- tary App. 190. The District ing its completion, by the comments of accepted Court this assertion as fact. responsible officials, the findings Fdg. App. 237. of the District Court. In setting up the NGPRP in Secretary Morton de- need for scribed it as “an excellent opportunity for development of the Northern Great Department to demonstrate how a recognized by responsible of- responsible Federal agency manage can ficials in the various that subse- resources development with proper re- quently became involved in the NGPRP. gard for protection.” 2,May On 1972 Secretary Agriculture 200; App. supra, see Butz wrote to the Administrator of the at-, In responding F.2d at 863. Environmental Protection Agency with questions about development of the reference to coal development Region posed by congressional commit- Northern Great Plains: agree “We tee, provided Interior this statement: comprehensive, systematic, and inter- disciplinary study of aspects orderly timely An assurance of development and use of our coal require analysis reserve would App. needed.” July 6, 75. On 1972he and assessment of such items as re- Mansfield, wrote to Senator again gional with coal demand and the relation- reference to the Northern ship existing Depart- Plains: leases. The is considerable urgency State, initiating “[TJhere ment is local and need for a coordinated mineral program develop regional Federal ment strategy.” App. Likewise, development plan or framework for November 1972 the Montana, Chief of the For- Wyoming, North Dakota est Service wrote to Senator Dakota Mansfield area South associated actions or groups of actions and Fort Union coal River the Powder Northern Great objective Plains area.27 is the wise formations. region accom- Fdg. App. 242. social, plished in full realization eco- ecological consequences of nomic However, while the NGPRP possibilities. alternative attempt provide does a framework for decision-making to allow the federal Disposal Policies, Leasing and Federal government to control development of Hearing Before the Senate Committee Plains, Northern Great it plainly rec Affairs, arid Insular 92d on Interior need, ognizes the which fill, it does not Sess., program The Cong., 2d study for cumulative of the environmen obviously was the NGPRP. mentioned impact development.28 tal of that The found that Lastly, the District Court asks, report draft interim “Is the report of the NGPRP interim powerplants two mines or of in the same founda- an informational provide great will one, area twice as decision-making planning. and tion larger?” warns, or it It im “[T]he will be utilized in de- information This pacts of coal development in the North all coal related ac- cision-making for ern Great Plains greater be than Plains are- Northern Great in the tions projection analytic techniques and a useful reference form as and will used have been able to delineate.” environmental preparing source NGPRP Draft Report Interim at V—2. on analyses and statements purport The NGPRP does provide impact. gional hensive, systematic compre- What is needed is a 27. The court also found: interdisciplinary and Department purpose of Interior study development region, of coal in this respect development policy with resource Energy Study similar to the Southwest in- Plains Areas is to in the Northern Great development program, the oil shale development proceed does not sure that spirit satisfies the letter and of the National purpose incap- solely single studies based Policy Environmental Act. comprehensive developing informa- able of App. 82. by piecemeal which restrict actions tion or future granting permits purpose options. fulfill that To suggests The dissent the various leases, special approval use contemplated in the Northern Great Plains are types rights-of-way across essentially independent another, of one so that lands, delivery public and sale of water a commitment to one entails no conse- mining plans relating approval to coal and development quences for another. Thus there is no need in the Northern 'Great comprehensive planning, abeyance pending areas will be held Society and SIPI and Conservation of South- analysis availability and of the interim re- Vermont, Secretary ern Transporta- Inc. v. study port or submitted to from the NGPRP Cir., tion, (1974), inappo- F.2d 927 Secretary Interior for review Under the and site. Dissent infra prior concurrence to execution. at---, F.2d at 887-889. We disa- Fdg. App. 241. gree. examples beyond sug- To cite two those above, gested manpower ing availability of water and Agency 28. The Environmental Protection has Region in the is limited. Coal min- recognized also ronmental consideration of the cising the need for cumulative envi- crucially dependent upon both. Thus Region. Exer- considerably of one mine is more statutory regulatory duty his to re- than an irretrievable commitment to that mine. major agency view and comment on which actions to supply, case In the of water it forecloses the 102(2)(C) applies, see 42 § U.S.C. possibility ble, another, environmentally prefera- 7(a), 1500.9(a)(1974), § 40 C.F.R. the identical letters to the § 1857h— manpower, mine. In the case of it creates Administrator, in EPA pressure population which, for a influx while Agriculture, of the Interior Secretaries mine, may cumulatively minor for one con- regard stated Society siderable. As SIPI and Conservation Northern Great Plains: us, it is tell that prehensive these sorts of environmental effects prepared Environmental statements regional, can best addressed in a com- project-by-project on a basis accordance manner. See also note 31 infra. Policy with the National Environmental Act adequate are not to evaluate the overall re- believe, problems. to these We answers a “plan,” a “program,” or nothing at all. however, requires those an- that NEPA Thus, supported by the Conservation So- view It is our found. swers be ciety precedent and based on the evi- government, through when the presented dence to the District Court leases, approve power of its exercise and the facts as found the District plans, rights-of-way, and water mining Court, contracts, we attempts to “control hold de- option region, action is en- velopment” contemplated definite program Northern Great constituting gaged in Plains. The District Court’s meaning contrary within the major federal action conclusion of law was in error.29 NEPA, attempts it labels whether its cases relied upon by appellees 1280. Even concede that District Court to show no state- impact no there was claim made in Jicarilla that a regional regional a such required ment is for plan, impact statement was necessary. In- are all cited inapposite. Every NGPRP tervenor appellees’ brief at 28. injunction case involved the of an propriety Likewise, Environmental Defense Fund v. against project pending an individual comple- Armstrong, also supra, relied heavily upon by regional tion of a EIS or other None of study. regional the need for a appellees, statement challenge the cases involved a direct at sought was not issue. Plaintiffs there a regional a need for EIS. See Sierra Club v. not “comprehensive an study,” EIS, of the (1974); 5 F.2d 982 Callaway, Cir., 499 Jicarilla Project Central Valley before approval of the Morton, Tribe of v. Indians note Apache supra New Melones dam impact statement. The 25; Indian Lookout Alliance v. Volpe, supra court noting refused wait for the study, that Sierra 21; note Club v. 10 507 Stamm, Cir., comprehensive “no study has been com- (1974); F.2d Trout Unlimited v. Morton, 788 9 let alone menced, 356 completed.” at F.Supp. (1974); F.2d 1276 Cir., 509 Environmental De- is in This contrast sharp to this case Armstrong, v. fense Fund N.D.Cal., 356 where a comprehensive is study under way, (1973); 131, aff’d, Cir., 9 487 814 F.Supp. F.2d and the need for a comprehensive statement is Against Movement v. Destruction Volpe, at issue. (1973); 361 D.Md., 1360 Sierra Club v. F.Supp. Froehlke, S.D.Tex., 359 1324- In Sierra Club v. F.Supp. Callaway, supra, Fifth (1973); Project Conservation of North Council Circuit refused Wallisville delay pending v. Froehlke, Carolina M.D.N.C., a EIS F.Supp. comprehensive for the entire (1972), Project. holding remanded, 4 Cir., Basin was Trinity based findings Congress on its that intended the two projects be treated that separately, Wal- injunction course whether will Of an issue in Project not, in fact, lisville was a component such a case factors in addi- depends many Project, Trinity of the Basin that the Wallis- regional tion to whether a EIS in- required, is Project ville was complete while the Trin- cluding the 72% state of construction the chal- Project might not be Basin ity completed for lenged project and the comprehensiveness Project 40 to 50 and that Wallisville years, project. statement for that See impact was under before the well effective way date Sierra v. Callaway, Club 499 F.2d at supra, of NEPA. Thus Sierra Club v. is Callaway regional Thus whether a is EIS distinguishable; there was no fully compre- for was not determinative resolution at all. hensive plan Moreover, cited cases. of the cases did many regional raise not even the issue of a impact upon This crucial facts dependence sought statement, but of an indi- merely delay stressed in Sierra the case was Club v. Stamm, project regional vidual until completion relied also heavily upon by appellees. supra, might that some study be of assistance in pre- Strawberry Aqueduct Whether and Collec- paring the individual statement. major This was the a tion was itself federal action System situation Jicarilla Tribe Apache of Indians v. larger a or Bonne- merely component note relied on supra most Project, heavily ville or the entire Central Unit, Utah sought There by appellees. plaintiffs delay as well was a of fact as law, and question * * * generating four coal-fired electric turned on “the ‘facts’ as crucially * * pending in four southwestern states found trial court 507 F.2d Energy issuance Southwest agreed Study. Tenth at 791. The Circuit rejected the sensibly court claim: with the trial court that the Strawberry sys- “major a that tem in and of If we were an itself a impose requirement constitutes Federal action” and that statement can never be un- it is not a impact prepared mere relevant increment either til all environmental effects were Bonneville Unit or Project requiring it is that could Central Utah known, doubtful final something initiated. statement impact ever be more than IV impact plans the environmental of its be- itself, committing even tentatively, fore conclusion Our action. An to signed is de- contemplated in action federal to aid decision-making, mean, does not Northern provide justification an ex not post facto facto, ipso fully it. We adhere to our statement A state required. Coordinating in Calvert Cliffs’ Commit- “recommendation precede the ment must AEC, supra, tee * ** ma- proposals report on 102(2)(C), Section actions.” [compliance Federal jor NEPA [with demands] added). (emphasis 4332(2)(C) § U.S.C. issues be con- timing that question every This raises sidered important at stage in it We think in SIPI. making so critical the decision process concerning does “proposals” the term patent particular every action—at stage suggestion, every how- encompass where balancing an overall of environ- fruition, made unlikely to reach ever mental and nonenvironmental factors Certainly offi- officer. appropriate is might where alterations out loud with- to dream entitled cers are be made in the action Thus statement. filing out to minimize environmental costs.30 inquire, before proper we think 449 F.2d at 1118. proposal whether required, EIS us, But, as SIPI tells the beyond progressed has action tangible form stage into some “dream” pulled are in two [W]e directions. impact statement time for an that the so Statements must be written late U.S.App.D.C.at supra, SIPI, ripe. is 409-410, enough the development process We 1093-1094. F.2d at meaningful information, contain but however, “ripeness” the note, that should early must be enough written so is before a statement necessary that whatever information is contained of a statement Preparation slight. is can practically input serve as an into accompany, or least at precede, must making process. the decision of the recommendation preparation agen- so that the proposal, the report on F.2d at to assess opportunity the have cy may Project Strawberry system Division of quate Teton be the Basin was ade- before work the despite attempt fact not the that did Dam. on Creek commenced the Currant analyze impacts the environmental of the Again note this case was we Id. at 792-793. distinguished The court Second Phase. the challenge to individual the context the requiring comprehen- before it from cases case question involve the and did not impact noting that sive statements the First necessary comprehensive EIS a was whether “substantially independent” was Phase of Moreover, Cir- merits. the Tenth on own its Second, approval of that the Second was not treat the facts sufficient to cuit found foregone retary approval of conclusion since the Sec- System Strawberry apart from overall Congress yet of the Interior and the had however, extent, project. To the that obtained, that to be and the First Phase would assumption proceeded Tenth Circuit that fully even if the be functional Second were “major only could be one Federal action” distinguishing built. We think those never Unit, found, Bonneville either entire distinguish fully factors Trout Unlimited from Strawberry Project, Utah or the entire Central appellants’ where the instant case the thrust disagree. System, that a It is clear to us we complaint widespread development . is may require impact major action virtually the Northern Great Plains is certain part of a a still for itself and occur, and that the effects of the requires larger that also action meaningfully can assessed in SIPI, holding and That statement. cumulative terms. Sierra Club to it. To the extent we adhere contrary, it. to follow we decline Stamm is Compliance with the substantive demands important by appel- cited to last case us 102(2)(A) (D) required, of § is course, Morton, supra. lees is Trout Unlimited v. even before an under statement is necessary pre- There the Ninth Circuit held that an EIS 102(2)(C). § pared for the First of the Teton Phase Lower balancing analysis our fac- problem SIPI notes with re- and, this time is inconclusive at be- tors gard development to research and pro- are cause we told grams applies defining with like force to dispositive un- resolve certain about to certainties, any “proposal” within the meaning of- this case to we remand 102(2)(C). SIPI identified Section four appel- the federal to allow District Court balancing analyzed factors must be their own determi- initially make lees weighed to determine if the time is nation. ripe for statement. Id. Cf. 1500.6(d)(2). 40 C.F.R. With § minor We find from the from the record Dis- modifications to make factors appli- ample suggesting trict Court that, evidence cable to all federal actions just and not balancing factors, as for two program .research and is ripe. the time for a statement indeed SIPI, adopt at issue in we those factors Meaningful information on the effects of agency, here. Thus the or the reviewing development of coal resources in the court, inquire as should follows: How Plains, and Northern Great of alterna- likely program fruition, is the to come to development, certainly tives to that and how soon will occur? To what available, although yet compiled meaningful pres- extent information analyzed. Of course it is the mere avail- ently available on effects of imple- matters; ability such information program, mentation of the and of alter- compilation analysis purpose are the natives and their effects? To what ex- itself.31 Like- tent are being irretrievable commitments severity wise the the environmental options precluded made and as refine- effects of massive coal progresses? ment of proposal How the Northern Plains is clear and severe will be the environmental effects finding ripeness. inclines us toward if program implemented? expound There is on the ef- no need to pointed SIPI, put, region As we out in ap Briefly fects here.32 best plication fish, of this test is in the wildlife first in known for its abundant stance a agency, scenery, region task for the since an and for its beautiful swering America, questions, the and balancing sparsely from the isolated urban answers, clearly requires unindustrialized, virtually exper populated and tise. also Citizens industrial See id. See Assn of will be converted into Georgetown, Zoning v. complex. Inc. Comm’n of C., 233, U.S.App.D.C. D. 155 the other two Weighing bal (1973); F.2d Wilderness Society clear-cut. ancing factors is While not so U.S.App.D.C. 121, 145, development approval of the of (1973) (en federal banc). F.2d While fairly seems Great Plains cer judicial Northern scrutiny an agency of decision occur, in occur the rela tain to and to yet ripe that the time is not for a state as to lessen is, tively near future so our course, appropriate, SIPI, ment of su oil, it dependence imported on seems to pra, at 481 F.2d at Furthermore, adaptable importance prompt The extreme how analysis is the of socio- equal development economic of the of environment? Do effects massive coal incre- of change require equal adjustments emphasized ments of by the Northern Plains Great is NGPRP, they require successively attempt engage the do which does not more? to It is quite possible analysis: impacts in such detailed that the of coal devel- opment in the Northern Plains uncertainty regarding Considerable remains - greater projection analytic than the and impacts the socio-economic of coal techniques used been have able to delineate. in ment the Northern Great Plains. Because complex development, of the nature of coal Report, Draft NGPRP Interim at V-2. extremely it is difficult estimate or assess vividly appel- 32. The effects are described in impacts. However, cumulative these im- brief, appel- lants’ and we not understand do pacts may be critical. Is the of two magnitude. appel- to contest lees their See powerplants mines or in the same area twice lants’ brief at 11-18. great one, larger? as as the of or is it yet the Government has not us clear ready approval, stayed only by our granting on its role in finally settled injunction. temporary approval. Significantly, rele- the balancing of the analysis Thus four geographic development area for vant inconclusive, inclin somewhat factors Interi- uncertain.33 somewhat simultaneously seems a finding still toward ing us North Central broadly conceived stay or’s ripeness a desire our hand of further define their appellees roles. while responded collapsed, it Study Power However, unnecessary find it we Re- Northern Great the with of ques resolution the a conclusive reach the NGPRP Program. While sources time, the uncertainties tion in guide Government the intended about inclining us toward restraint are development private controlling told We are the be resolved. yet report is not interim Region, the report NGPRP is final interim grapples As the completed. Government issued; indeed, may have to be about Northern Great its role already. According to the federal activity issued suspended Plains, largely it has they will then feel free to be appellees, suspension long so Thus therein. activity approving private in the gin effect, commit- irretrievable stays n Northern Great We Plains. think the being while largely avoided ments posi will be in also scope pro- appellees determine tion, report, upon issuance interim On the other action.34 posed absolute; definitely upon their role more to decide hand, suspension is development the Northern in the mining plans approved been four have Plains,35 and we think we should are Great years four more past two Thus, region being by the five covers so while NGPRP the ment. Precise definition of the treated Govern- Dakota, Montana, Wyoming, region North states South is one Nebraska, Dakota, projected lawsuit, consequences its de- of such a of the prerequisite not a only velopment complaint northeast- of the area covers for it. The should be Montana, Wyoming, sufficiently precise put and the west- eastern the Government on ern ern Dakotas. See, g., scope plaintiff’s Interim e. Draft NGPRP notice claim. That 5B, Development here; indeed, Report, clearly plan- Probable Plate Most achieved was ning maps Power Central North Forcast of the NGPRP released [sic]. after initia- hand, encompassed sig- Study, the other of this suit revealed the area tion the the area defined area, Aqueduct larger virtually nificantly appellants precisely while the to describe Wyoming. Study aptually Montana covers considered for that, power, abuse of this absent We think the NGPRP. region comprehen- proper definition proposal lack of It definition therefore, and, compre- sive suspension activity action and the should left in the hensive crucially distinguish region this that case from appellees. the federal of hands Society Vermont, of Southern Conservation Inc. v. something appellees of make of an issue Secretary Transportation, supra of note by area the covered differences between at---, the the lants brief 28, supra, U.S.App.D.C. see 169 by appel- and the area described NGPRP Soci- In Conservation 873-874. F.2d at the 514 appellees’ complaint. Intervenor in their at proposed action was scope the ety of 23-24, 43-45; appellees’ brief federal length of Route 280-mile entire clear —the signif- also found 4 n.l. The District Court at 20- irretrievable commitments—the 7—and discrepancies, ruling: in these icance segment under be- mile construction —were region” as de- The “Northern Great Plains ing would made that determine the course plaintiffs entity, proposal the is not an re- scribed Thus the future action. of sufficiently ripe comprehensive impact gion, the preparation area which has been defined or to demand of a by statute executive Federal Government or statement. purposes program, Federal action for of ,the project, or action. appellees It is that 35. admitted federal in- help tend to use the NGPRP to the need define 7, added). (emphasis Fdg. App. find 235 We scope impact future and Northern of statements in the argument merit. In a case to be without this Fdg. Supp. Plains. 6. Great this, appellants have the where seek to such as appellees’ plans treating acknowledge The fact that to control de- that it is Government may velopment region of the Northern Great Plains development comprehensive spring whole, unnecessary not NGPRP interim full-blown from issuance of the the com- deem it for a we course, is, report territory every of of no con- within plaint to define acre 882 If, as has been denied, (1972), 908, await their definition. cert. 412 U.S. 93 S.Ct. controlling role is one of goal, 2290, their that (1973). 36 L.Ed.2d 974 According then, the region, as we development ly, we remand this case to the District above, comprehensive a clear have made appellees Court. The federal must de proposal accompany the for should days EIS cide within of issuance of the presumably would be action, em Report, NGPRP Interim or date of report.36 If, in a final NGPRP later,39 bodied opinion, whichever is wheth expectations, ap the federal contrary to prepare comprehensive, er to a program role in upon another pellees settle matic statement impact Region, the Northern Great they report decision, must their all, they Plains, no role at upon or must it, the reasons for to the District Court.40 impact an statement whether is decide appellees against If attempting decide they nega decide required.37 If control Northern Plains, they report, Great must also of rea

tive, require “a statement we will detail, what federal role in the Re [they why sons believe] gion will be. See Arizona Public Service unnecessary.”38 Arizona is statement FPC, supra, U.S.App.D.C. Co. v. at FPC, 157 U.S.App. v. Co. Public Service 280, . at Appellants F.2d 1275, will be (1973) 279, 483 F.2d D.C. challenge appellees’ impact able to state U.S.App.D.C. SIPI, supra, 156 at also See and, appellees ment decision if 1095; decide not 410-411, Hanly at 481 F.2d 1094— prepare comprehensive statement, a Kleindienst, Cir., 471 F.2d 823 statement is Northern sequence. intended Great we Plains, remind them agency planning decision-making aid the requirements such a statement before the final recommended issue for regional proposal ac- even if action, enough tion It is is made. character, scope that environmental factors clear that proposal sufficiently be stage consider- considered at every deci- sion-making ation of its environmental about possible. such are action not inher- or ently flexible discretionary. See Calvert If the federal decide a prepare Coordinating Cliffs’ Committee v. AEC, supra regional EIS for the Northern comprehensive note 25, 146 U.S.App.D.C. at 449 F.2d at it of no Plains, is, course, conse- 1114. But see note 36 supra. to us what form it takes. The EIS quence may 39. Should, for some reason, the NGPRP inter- in already be statements incorporated planned im issue report within a reasonable time projects, it subdivided may after date this opinion, appellants may subregional into or be is- statements, petition this court for a further order. a whole. All is that sued as matters region Morton Secretary seems to have study made. conceded comprehensive subregional that some sort of SIPI, note at 408- state- supra ment will be necessary. Natural Re- 1092-1093; Defense Council v. D.D.C., sources It is possible decision will be made to pre- See notes 15 & 23 388 F.Supp. pare the entire Northern region, supra. Great Plains but information availa- ble may indicate that. of no statements It is likewise concern whether smaller ap- subregions, geologic jointly state- basins structures, or se- prepare pellees lected individual actions will fulfill each their own, ment or whether prepare policy long procedural requirements so as the cumulative effects of all National Environmental Act in a Policy more contested actions are assessed. satisfac- fully manner. tory Until those decisions reached no new coal leases will might issued We note that impact except leasing pursuant to negative the short-term for the decision not to con- required policy. interim from the report NGPRP Great Plains, trol Northern * * * will provide an informational foun- as for decision to do positive as well so. decision-making dation for planning. and Public v. FPC, See Arizona Co. Service 272, 280 483 F.2d n.24, U.S.App.D.C. Affidavit of 194-195. Secretary App. (1973); 1282 n.24 of York v. agree City New United We that the NGPRP will a provide basis (1972) E.D.N.Y., States, F.Supp. making for the decision whether to a prepare court) (Friendly, J.). (three-judge comprehensive statement for impact Northern Great Plains. We order guided allow in appellees, we will the federal While our Secretary, by interpretation the decision wheth- instance, to make first the procedural policy requirements regional statement is for necessary NEPA, make that impact er a decision. significant exception op- will which this present again to the District Court to Moreover, remaining erate. theory geographic, envi- their appellees’ policy of seems ronmental, forbearance to programmatic interre- and/or dissolved, although they have have actu- Region man- lationship activity in ally approved Region. few actions in the such a statement. dates at U.S.App.D.C. supra, See V ---, We 514 F.2d at 864-865. appropriate appellees think would for these to we refer back Since compre- adopt policy to similar to prepare appellees In- whether to decision for the North- terior’s. impact statement hensive tempo- Plains, our we continue ern Great Second, denying appel- in as we noted 3, 1975 until January injunction rary injunc- preliminary lants’ motion for a pre- will This is reached. decision spring, spectre signifi- last tion pend- quo serve, the status large part, in cant, unnecessary, large harm to we do While appellees’ decision. ing valuable wilderness still re- tracts comprehen- any more issuance order applications mains. The number of time, note that we at this injunction sive approval various activities of a re- the issue to refer decision our large. urge appellees, deciding We while in resolution appellees to gional EIS prepare comprehensive whether to im- large in prompted instance the first pact statement the Northern Great in autho- forbearance by appellees’ part Plains, to take no actions that would de- Region pending is- activity in the rizing purpose impact feat statement regard, In this NGPRP. suance say, designed to serve. Needless to how- First, while two observations. we have ever, open, appel- the courts remain have policy seems interim Interior’s others, appel- the federal lants or should considerable upon with embarked been approve any lees decide nonetheless confi- faith, more we would have good private endeavors in the Northern Great were not escape hatch it if the in dence Plains. stand, re- large. matters so As quite injunction against Whether activi- activity with- approval of quests for ongoing proposed, ty, either in the Northern jurisdiction Interior’s in pend- Plains should issue Northern Great ing preparation re- abeyance pending held in will be gional impact question is a we interim analysis of the availability need not reach.41 We note only that a study or sub- report from the NGPRP responsible policy by of restraint the fed- Secretary for re- the Under mitted to eral respect authorizing to execu- prior and concurrence view activity might such make the question tion. moot. Morton, App. 194 Secretary Affidavit VI added). No standards (emphasis ques- Secre- presented which the Under difficult suggested case has This We proper concurrence. balance be- grant involving his tary will tions particular- deciding in appropriate, agency’s discretion it would be tween an think when, follow- whether, to continue to issue an environ- policy were ly if this comprehen- statement, judici- prepare and the ing a decision mental statement, Secretary overseeing exercise of that ary’s role sive that, standards to the full- publish believe determine We discretion. Redevel- v. District of Columbia in Jones sion if a that even concluded Court District 366, 376, opment Agency, 162 ap- were (1974), clear which makes irreparable harm no pellants shown had issuing considered activity harm to be barring injunction justify an would injunction at the time cases matures completed. in NEPA were region the statement until necessary but is becomes statement regard, an direct we 11, App. In this 248. Concl. filed. not deci- recent court’s this attention court’s 884 possible, agency

est extent it for the I implement the demands of NEPA. The trial court appel- concluded that the courts While should not shirk their complaint lants’ failed present justi- a role, responsible it is compliance of ciable case of controversy because agencies the federal that will make envi- the courts will not validity review the planning day-to-day ronmental occur- of supporting statements or studies rence and that will make the needless until final federal actions taken [are] priceless heritage abuse our national 102(2) under NEPA section and until nightmare past. We are confi- agency after final action has been tak- lose, agencies dent the will not or mis- en respect to the individual use, opportunity. this project.3 remanded. Reversed and majority While the concedes that “as a general proposition of law NEPA chal- MacKINNON, (dissent- Judge Circuit lenges projects to individual can be ing): brought only final approval after project,” interprets of a Scientists’ In- foregoing opinion, majority In the Information, stitute for Public Inc. v. remanded this case with has instructions (SIPI), 395, U.S.App.D.C. AEC 156 481 abeyance pending that it be held (1973), as holding F.2d 1079 that a chal- a “study” presently being issuance lenge a comprehensive program need prepared by appellees. the Federal It is through not be made an attack on anticipated that the release of study project.4 As individual indicated hereaf- enable the will various involved ter, the record in this case does es- not days decide within 30 thereafter comprehen- of any tablish existence comprehensive, programmat- whether “a regional program type sive found 1 ic Region” statement for the justify requiring could SIPI necessary. I conclude that a re- Since preparation regional environmental gional statement at impact statement this time. How- (EIS) presently these ever, even if one concedes such circumstances, I find no need to remand might appropriate, the Dis- proceedings the case for further and ac- concluding trict correct in Court was still cordingly from the dissent action of the action divorced from review majority. covering of a statement an individual proper is not a means practical immediate effect of appellants’ determination of claims. majority's decision is to continue the injunction temporary ordered deciding In that the instant January 3, 1975, court on ease is a in order to proper vehicle “preserve raising . . . claim for a quo.”2 status EIS, majority My objections has over- the continuance of this injunction required relationship looked the are the between same as were indi- prepared the statements my cated in original dissent to the order. “regional” and the Morton, See Sierra Club v. 167 U.S.App. appellants appellants seek. If 533, are cor- 756, F.2d 534-36 509 D.C. Majority Op. -, U.S.App.D.C. 1. AEC, 169 at 514 Coalition for Safe Nuclear U.S.App.D.C. v. Power 150 118, 954, (1972); at 883. F.2d 463 F.2d 955 Ecology AEC, Thermal Must Be Preserved v. F,2d U.S.App.D.C. at-, Id. 169 514 at 883. 366, U.S.App.D.C. 524, 139 433 F.2d 526 (1970); Gage Co., v. Commonwealth Edison F.Supp. 80, Law, 7, (N.D.Ill.1972); j| App. 247, Sherry citing Conclusions v. Sci- Gas, Algonquin 1713, AEC, (D.Mass. entists’ Institute for U.S.App.D.C. 4 ERC Pub. Info. v. 1972). (1973); 481 F.2d Natural Resources Defense Council Majority Op. (1972); n. 20. ii requires asserting NEPA the that rect in preparation ments development sarily must EIS comply comply with NEPA. lows that ceed. preparation Plains on covering may proceed, then an individual before that NEPA does be at of a more NEPA, individual regional present the Northern Great it Conversely, if an project may not necessarily fol- EIS before projects neces- insufficient all the require is found to state- pro- any the Act Government shall— The starting point the (C) (2) (NEPA), report ***:}:* need for an environmental other include in National Environmental is of course section 42 U.S.C. § proposals every Federal actions recommendation 4332(2)(C): the Federal legislation discussion 102(2)(C) Policy ^[*] sig- affecting nificantly quality of the the already been have Impact statements environment, human a detailed state- mine, the the Westmoreland issued ment by responsible official on— project, Company and four Peabody Coal (i) the environmental right-of-way mines and railroad the proposed action, Supp. See Basin. River Powder Eastern (ii) any adverse ef- these, the Remand, Of 9a. Finding on H fects which be cannot avoided suf- found be was EIS Westmoreland should the proposal implemented, Redding v. Mor- NEPA under ficient (iii) alternatives proposed (D.Mont., May ton, No. 74—12—BLG Civ. action, 9th 1, 1974), appeal Cir. No. pending, (iv) the relationship between local remaining statements 74— short-term uses of man’s environ- challenged yet have been apparently not ment and the maintenance and en- My to the issuance of dissent in court.5 long-term productivi- hancement of states, and I temporary injunction ty, and believe, the proper continue (v) any irreversible and irretrieva- assessing the use in need for method to ble commitments of resources which appellants to is for regional statement would be involved in the sufficiency appeal challenging file an implemented. action should it be covering an individual the EIS Appellants’ apparent inability project.6 question The crucial here is whether the challenge the successfully statements “proposed” Federal have “ma- projects jor as too limited in require federal on individual actions” which strong, compelling, preparation if not evi- scope covering is of an EIS all coal- regional a “comprehensive development related dence in the “Northern this time. Region.”7 Great Plains EIS” litigated argument “in- it would be statements Appellants’ was not before 5. Court, specific majority if the intended attack District this for them to convenient” finding statement as a its own serious consideration based on exam- does not merit actions they support ination that insufficient court. this cover, exceeding would majority 6. The asserts: permissible scope appellate review. any of has been contention that There no Appellants’ complaint the area described comprehensively individual statements these Wyoming, issue as “northeastern eastern Mon- study coal tana, western North and western Dakota Plains, our Northern Great ment App. luck, By South Dakota.” a stroke of makes it clear of the statements examination vague “region” roughly conformed with they do so. not do county area which the Northern Great However, ques- Op. Majority at n. real study Program (NGPRP) Resources la- comprehen- case is whether such in this tion ter as the area identified in which study necessary As indi- here. here sive likely However, the conclusion occur. cated, merely in- form of the this is another region potential that a has sufficiency quiry statements on in- into cry a far from a declaration sufficiency projects. Since dividual approved may which have been or which perspective, case in it place To this is exactly in mind important keep what approved in the future are not “ma- appellees The federal do is not at issue. jor.” Furthermore, agencies the have they taking deny actions consistently required that the on EIS development within related to coal each consider the cumulative en- contrary, region. On the several impacts develop- vironmental of related projects are admitted to be various appropriate, ments.9 Where have stages development, agencies and the of impact which con- prepared statements consistently prepared impact have state- taking together action.8 several related prior ments Nor sider any within an area.10 there contention ments government undertaking program of coor- resource and from somewhat north of Gil- region. dinated of The Dis- point Douglas. lette to a somewhat south of correctly trict Court concluded: part The area delineation is based in on present anticipated mining levels of ac- region” The “Northern Great Plains as de- tivity, differing quality resource, by entity, coal plaintiffs scribed gion, is not an re- physical arrangement different by of the coal or area which has defined been beds, mining techniques somewhat different by Federal Government statute or executive required differing physical any purposes program, reclamation action for project, Federal requirements. having Those considerations or action. scope geographic impact a broader as social spheric influence, such Fact, 7, Permitting ap- Finding App. 235. fl conditions, factors, economic atmo- region pur- pellants poses to define their own resources, water and rec- possibility raises the clear of this action larger regional reation uses are treated on a potential plaintiffs could seek an that other infinite covering primary study basis than the statement discusses the area. This progression “regional” statements existing environ- choice, “regions” thus of their own ment, evaluates the collective by seriously disrupting any attempt the federal proposed ble, and, possi- actions insofar as now appellees to deal with the impacts potential future coal min- majority recog- national resource. critical ing geographic within the area described by danger posed nizes the its decision allow above. This statement also examines in de- (Majority appellants to maintain this action proposed tail certain activities for which fed- at---, Op. 514 F.2d required. eral actions are give District 874, 875) but declines any guidance it must allow whether Court new pel, See, g., Impact the Final Environmental e. seeking to com- plaintiffs suits to maintain Statement for the Eastern Powder River Coal example, preparation of statements Basin, which covers four mines and an associ- deposits or cov- covering in the nation all coal right-of-way. recently, ated rail More Interior single Northern Great ering Basin in the Ayr has released a draft EIS for the Belle Province, “regions” have both of which Company, South Mine of the Amax Coal also subject This various studies. been the also located in the Eastern Powder River Basin. by simply re- problem be avoided could entire quiring appellants The Preface to that document states: challenge particular fed- January 1974, Departments In of Inte- action, enabling evaluate the court to thus eral the that Agriculture rior and and the Interstate Com- impact from the environmental extent of that, pro- merce Commission decided under accordingly. region and define the action visions of Section 102 ronmental mental National Envi- Policy Act of an environ- prepared See, g., statements e. prepared statement must be Peabody Resources and for the Westmoreland any pend- before decision could be made on Company mines. Coal ing proposals major development of fed- Environmental Im- The Preface to the Final erally-owned coal in the Eastern Powder pact Eastern Powder River Statement on the Wyoming. time, River Basin of At that Basin, I,Vol. illustrates the considera- Coal were, major strip plans pend- there four mine in deter- tions used ing approval Department before the of the before the mining necessary scope of an EIS: pending Interior. There was also Further, proposed of the Act in Interstate to meet the intent Commerce Commission fashion, necessary productive the most construction of a railroad some 113 miles in length, general geographic Ayr spur area of between the to examine the the Belle Mine and Gillette, potential ge- Wyoming, proposed Doug- actions. The southeast of las, ographic Wyoming. consideration is that This area for basic railroad was to serve Wyo- part ming lying generally proposed developed the along River Coal Basin coal mines of the Powder to be right-of-way eastward from the in the basin. outcrop line, the coal line of The construction of this Powder River railroad Transportation, court appellants present Secretary What to this 1974). There is no doubt good (2d. that all these faith ef- is a claim Cir. state- part on the of the various that a forts holds SIPI circum- satisfy the demands in certain are not sufficient ment holding it is colored carry 102(2)(C). stances, To out like of section but NEPA, reasoning. The diffi- appel- requirements its facts and its alleged application of any development culty arises in the that before lants assert go here. region may allowed to for- to the facts in the decision ward, must first the concerned justi- which consideration The crucial “comprehensive” analysis of prepare cov- a statement requirement the fied present impacts of all the environmental in project an individual than ering more potential development within the re- Society and Conservation both SIPI gion. commit- irretrievable presence the ac- what was beyond of resources ments Ill project. in an tually expended reversing the decision of the Dis By Liquid in the development SIPI, each In Court, majority indicating its trict Program Reactor Breeder Fast Metal pos that there is some substantial belief unlikely that it more made claims will ulti sibility appellant’s that its invest- abandon in the future could To reach this con mately be successful. energy alternate of some in favor ment clusion, major opinion reasons source: combined to cre federal actions can be manner in which we divide our new ate a federal action for which development dol- research and limited authority necessary. Its EIS today among promising lars various proposition this is this court’s decision in technologies in effect determines Institute for Public Informa Scientists’ available, technologies which will be tion, (SIPI), v. AEC 156 U.S.App. Inc. type and what and amount of environ- (1973) F.2d 1079 and the D.C. mental effects will have to be en- Second Circuit decision Conservation dured, we must in the future when Vermont, Society of Southern Inc. v. analy- mining proposals, Accordingly, as well as a number four Basin. Coal anticipated possible future coal- and informa- of other included data sis of FES 74-55 impacts developments operation every proposed all their related known tion from environment, by were evaluated in an various on the be under consideration way study entitled In this area. leaseholders “Proposed Development potential impacts of Coal Resources of the total the cumulative Wyo- Subsequent development in the Eastern Powder River Basin of assessed. could be ming.” preparatory filed with The final statement was efforts for FES to initiation form, Quality filing prior final the Council on Environmental to its 74-55 and Department mining proposed of the Interior on October and reclamation other existing development plans Federal approv- I of final environmental Part were filed for' leases in the area coal (hereinafter designated Survey, Department Geological 74- FES al with the 55) regional analysis Interior, en- was devoted to a law. environment, compassing existing date, these Because of the submission projected development coal and the cumula- specific plans not be included for site could development on the envi- tive effect analyses In the assessment in FES 74-55. through II VI of the FES ronment. Parts follows, specific aspects of the site specifically plans mine dealt with four plans proposed mining and reclamation the railroad. and the construction of Ayr the Amax Belle Mine of for the South Due to the increased nationwide demand Company, analyzed using informa- Coal generation sulphur coal for the for low previously published in FES and data tion electricity, anticipated it was that a number gained together from with information 74-55 mines, large strip in addition to those coal company reports. field observations through in Parts III four mines considered incorporated herein FES 74-55 is Part I of 74-55, FES also be VI of would by reference. of Federal coal leases near future in the Eastern Powder River apply technology some new to meet project sion on one federal was found to projected energy demand. presently cause irretrievable commit- ments on future or the foreclo- Similarly, F.2d at 1090. the court sure of future options, this court and the Society found in Conservation quite properly Second Circuit found segment 20-mile construction for the entire EIS was neces- highway generate would traffic and thus sary step before initial could be tak- pressure create further construction en.11 along the entire route and foreclose con- highways. sideration of alternatives in- analysis, Applying the above Phrasing decisions in terms of these readily distinguishable from stant case is “regional” potential Society. and Conservation both SIPI case, the instant it is clear that issue in action will un- Any coal-related and Conservation So- SIPI the courts in require certain associated de- doubtedly ciety action at one found approval velopments. example, For point “region” rip- in would cause a the probably most re- mining plan will ple eventually which would have effect rights-of-way of rail granting the quire an on future federal actions else- housing of facilities and the construction “region.” where in the Because of this However, these are employees. for mine effect, each that the court determined action, of the initial consequences direct agency prepare involved was to always have agencies involved and the for the entire impacts that such position taken the “region” approve before it could an indi- considered in the which must be EIS project “region.” vidual within the mining approval plan. precedes type of com- record devoid This holdings reason for the above be- “regional” resources which mitment pur- comes clear when one considers and Conser- SIPI justified the results in pose preparation underlying of im- Society. Developments vation. in one pact Virtually every statements. Plains part the Northern Great “significantly affecting quali- action develop- from essentially independent ty of the human environment” will nec- region. in the For ex- ments elsewhere essarily involve some irreversible and ir- permit mining of ample, the decision to retrievable commitment resources. Wyoming, in to coal only requires agency NEPA that sub-bituminous dis- has the these the Federal Government close environmental con- which costs and decision; way commits Inte- rights, in no arriving sider them in at a it mineral mining approving proposals prevent rior agency pro- does not an from similarly owned the United ceeding lignite, project with a if the benefits States, Dakota. Even within in North outweigh the costs disclosed EIS. comprise each of the Basins which Thus where the irretrievable com- portion some Region, mitments directly resources are those irretrievably does not the coal reserves project, an associated with individual an permit commit covering that entire reserve. Fur- is sufficient to enable the to act. thermore, larg- it is clear that even the However, in situations where the ded- 11. The Ninth recently independent significance ab Circuit arrived at a LMFBR has no simi interpretation lar The court was care of SIPI: such future uses. sent require emphasize ful its decision Public Infor Nor is Scientists’ Institute for upon large part was based an EIS Comm’n, Energy 156 U.S. mation v. Atomic program significance reactor of the overall (1973) particu App.D.C. 481 F.2d 1079 change the manner which as a radical larly pertinent re here. There an EIS was electricity. produces See nation the entire develop quired for continued research and at 1089. 481 F.2d Liquified ment on the AEC’s Metal Fast Trout Unlimited (LMFBR) Program covering Breeder Reactor (9th 1974). 1285 n. 13 Cir. foreseeable effects if such a environmental put reactor were into future use. The projects will not have est of Every propriety cited case involved the impact on the entire an injunction against Region. It Northern Great completion project pending of a re- widespread de- indeed be case study. or other gional EIS None of eventually of this area will velopment challenge involved a direct the cases occur, for that impetus regional but for a the need EIS. from the nation’s need ment will come Majority Op. at n. 29. This is a classic par- the fact that from for coal example of a distinction without a dif- region has development of been tial ference. Surely, it is not reasonable to allowed.12. suggest the decisions reached

other courts are somehow less sound be- IV cause were able to assess the need for a EIS in the context of a Society were and Conservation If SIPI challenge to the sufficiency of a specific decisions, majori- only relevant statement whereas this court is consider- appear- have some might arguments ty’s ing challenge in the abstract without However, several validity. ance determining particular ever that a EIS arguments such considered have courts comply does not with the dictates of in cases by appellants, advanced those NEPA. If inference can be drawn were consid- facts presented majority’s distinction, from the it would than case the instant erably closer be that cited cases are entitled to Society, and have and Conservation SIPI considerably weight more than this “regional” EIS determined court’s decision in the instant ease. projects unnecessary before Jicarilla, supra, In rejected the court approved. could “region” the within contentions that Morton, statements is- 509 F.2d v. Unlimited Trout See sued in connection with each of v. several 1974); Club Sierra (9th Cir. 1276 Stamm, generating projects coal-fired electric 1974); (10th Cir. 788 F.2d 507 four southwestern states violated NEPA Callaway, 499 F.2d v. Club Sierra because prior were issued to the Defense 1974); Environmental (5th Cir. completion of a Energy Southwest Study F.Supp. 131 Armstrong, 356 v. Fund by the Department. Interior májor- The (9th Cir. aff’d, 487 F.2d (N.D.Cal.), ity pointing is correct in out that the of Indians Tribe Apache 1973); Jicarilla plaintiffs in Jicarilla were 1973); specifically (9th Cir. F.2d v. seeking delay pending completion the Volpe, v. Against Destruction Movement “study” a rather delay than pending the (D.Md.1973). F.Supp. 1360 preparation EIS, regional of a but rather the clear hold- to evade attempt forming than distinction, In its the basis of a cases, majority dismiss- the ings emphasizes of these this fact similarity its to the that: the assertion es them with instant case. Energy The Southwest Majority Opinion resources, 12. The at showing n. 28 cites two there is no here that the “examples” mines, strip of how it contends the various presently only which are the present potential developments projects actively being developed, are in- have suffi- availability supplies regional terrelated —the of water cient on water resources manpower region. in the resources Actu- foreclose proper future alternatives. The time ally, “manpower” problems the use of the term is a to consider such will be when the majority really agencies misnomer since what the type move to a talking pressure regional about is the the influx of ment which does tax resources. If necessary manpower particular additional on the area. there is insufficient type water for a pressure operation, type operation Insofar as one mine creates for a then that would not influx, population just any event, one more factor In used. this entire discussion points particular up importance appellants’ be considered in the EIS for that the failure However, project. opening any point the to show that mine in at in this record that the way authorizing any particular project no commits the EIS on has failed to ade- quately require importa- other mines which would consider all relevant environmental im- already pacts. manpower tion of additional in the respect area at a With future date. water commenced, the case Study designed “was to evaluate and therefore finds to the instant problems by sharp created further contrast to be power Study is under of coal-fired electric South- the NGPRP case where west;” (471 1279), however, purpose at a revealing, F.2d It way. the Northern fact to be quite similar to that of find this majority does not Program study. of Jicarilla Great Plains Resources in its discussion significance appar- Study had Majority opinion point Energy at this The where Southwest ently opinion fact its the case was overlooks the time been released prepara- ultimately not direct does decided. regional for the Northern tion EIS remaining The cases supra, cited on just but rather arrests de- Great Plains -, at velopment region until within involved demands that compre- issues, study point at which the need for hensive be prepared prior ap- EIS assessed. regional would be EIS proval projects of individual and thus are Ninth found that this sort of de- Circuit squarely point with the instant case. NEPA, lay my mandated was not Callaway, In Club v. supra, Sierra conclusion on the facts of this case is to Fifth Circuit reversed District Court effect. the same decision had ordered that construc- In Defense Environmental Fund tion of the Wallisville Reservoir Armstrong, supra, the Ninth Circuit af- up pending preparation be held an rejecting a District decision firmed Court covering EIS the entire Trinity Basin covering argument an an EIS project. The court held: project was inade- New Melones Dam We conclude that the Wallisville and a “com- quate because it did not include Trinity Projects River are not interde- study” covering prehensive entire pendent. nexus between Valley Project. Al- California Central require is not such as to plaintiffs again request- though the once Trinity Project evaluation EIS EIS, study not a ed precedent condition as a EIS language of the District Court is in- evaluation of Wallisville. The Wallis- structive: speak ville EIS should for itself. Wal- Under these circumstances there separate entity. lisvlle is viable It requirement NEPA that the no under should be examined on its own merits. respect with the New Melones EIS to Although compatible it has been made Project delayed comprehen- be until a Trinity in certain of its features with study Valley the sive Central increment, component, not a mere it is Project completed. long as each So segment Trinity. first The court or major federal action is undertaken in- holding. in erred so dividually indivisible, and not as an in- 499 F.2d at 990. Faced with a similar tegral part integrated of an state-wide situation, the the Tenth Circuit reached system, requirements then the v. same conclusion in Sierra Club NEPA are on an determined Stamm, supra. plaintiffs There the at- federal action basis. Plaintiffs’ Strawberry tacked the final for the EIS suggestion there is need for a Aqueduct System, a sub- Collection comprehensive study the Central larger the Bonneville unit of Unit which Valley Project should be made to the part was in turn a of the Central Utah Congress, and not to the Court. Project, because inter alia : above, F.Supp. at 139. As is stated the federal actions related to coal devel- (1) The Statement is too narrow in opment in the Northern Great Plains fall scope its should include the largely category. into this same The cumulative and collective environmen- majority the in Arm- before and that single single river or a course substantially indepen- Phase First basin, Fifth, watershed the Ninth and in those in while of the Second dent to Tenth Circuits were still able find the beyond the extend EIS must the projects sufficiently independent to ren- was de- that project, current comprehensive der a more EIS unneces- phases. The subsequent on pendent potential development The sary. the it would be that is such dependency Great Plains lacks even Northern this unwise, under- to irrational, least or at relationship between slight projects. subsequent if phase first the take great a at time need for Appellants, undertaken. also were not phases sources, are energy seeking new to halt here. the case is not This grades development of three of coal de- omitted). through (footnote posits distributed four states 1285 F.2d at

509 Thompson covering seg- SIPI and v. 13. The court discussed attacks on statements F.Supp. (D.Conn.1972) Fugate, highway presented and In- 120 issues ments and thus Volpe, F.Supp. Society. dian Lookout Alliance to similar Conservation modified, 1972), (S.D.Iowa F.2d (8th 1973). Majority Op. involved The latter two cases at Cir. n. 29. gram Study, but there is involving no assurance at nine federal present that it will be more success- least fifteen different forms of “fed- ful than earlier studies. Further- Clearly developments eral action.” more, Study was never projected Region by appellants this intended to produce comprehensive regional plan even themselves do not have the minimal development. for coal The interrelationships might Draft Inter- one have ex- Report im states: pected Callaway, to find in Stamm or Trout Unlimited. primary objective The of the North- V ern Great Plains Program Resource provide information and a compre- majority per- is to be credited for analysis hensive that can be used to ceiving “practical difficulties” inher- place potential impacts of coal de- appellants’ ent contention that NEPA velopment perspective into and there- impose upon allows courts by assist the people of the Northern duty plan comprehen- Government plains and the Nation in the interpretation sively.15 Truly, such an management the natural and hu- generation in the of an infi- could result man resources of region. plans progression nite justified by have to be com- which would It seems statements.

prehensive The three coal development profiles was enacted as a obvious that NEPA represent do not plans facilitating decision means ment, but are designed instead tools making paralyz- as a means of and not help measure what effects However, government. I ing the federal at different rates of development. nipping than rather am concerned. bud, in the fallacious notions such Plains Resource Pro- Northern Great attempts to demonstrate majority 4,5 Sept. gram, Report, Draft 1— legal appellants’ arguments have (emphasis original). only Not is the Although its dicta is constructed basis.16 Study insufficient to be viewed as a re- CEQ prior dicta and on Guidelines of EIS, gional majority correctly as the legal authority, questionable force as notes,18 probably issuance will add lit- its groundwork perpetu- laid for the has ability tle to this court’s to determine impractical ation of this erroneous regional the need for a if on remand EIS position in future cases. appellees po- the federal adhere to their yet adopted sition have not record, the ma- review of the From its pro- “overwhelming” evidence jority finds gram. have “the develop plan endeavoring Since review of the record and consid- years been the coal re- eration of those cases which have dealt regional development preparation Northern Great Plains.” with claims for the of more in the sources “comprehensive” However, thing statements lead remarkable most agree District such “endeavors” me Court19 two about first they collapsed require prepara- without that NEPA does not the fact regional develop- covering tion of an any plan for EIS coal-related producing currently pending activ- entire Northern ment. time, “regional Plains at this there is no lead to the Great ity which could pro- need remand this case for further anticipated majority is the plan” by ceedings. any justification Nor is there Plains Resources Pro- Northern Great -, U.S.App.D.C. at at---, at 17. Id. Majority Op. U.S.App.D.C. 15. 514 F.2d at 874-875. -, U.S.App.D.C. F.2d at at d Id. U.S.App.D.C. at---, Id. 169 514 F.2 877-878. at 873-875. Law, 19. See App. Conclusions of fl delaying projects further which are “major federal implement action” to already supported impact program statements preparation without the through continuation of this court’s tem- necessary impact statements.20 injunction. porary majority’s While the attempt to force appellants If at point government believe some federal to engage in support that an long-range EIS issued in of federal planning particular project on a might action fails to some be socially “good,” sense adequately reasonably question consider all relat- this before court is not impacts, they ed environmental can chal- what the agencies “ought to” do but lenge pro- the normal requires under rather what they NEPA judicial cedure for of impact my review do. To clearly mind it does not re- Furthermore, statements. quire in the event or authorize the continuance of the agencies the various take steps concrete temporary injunction to hold federal toward the agencies establishment a federally in check because the majority program regional coordinated suspicious of what agen- federal ment, appellants will of course be might able cies accordingly do. I respectfully bring agencies their suit if the take a dissent. government does not do is still rath- majority’s suggestion 20. The large. many good er A of these inactions might prepare state- undoubtedly have an on the environ- justify why ment or a statement of reasons ment, any but it agen- is difficult to see how taking major are not federal action to cy produce nearly would be able control the Northern “negative” impact infinite number of state- Op. (Majority carry assigned ments and still out its func- 37) -, and n. 514 F.2d at 881-882 event, clearly tions. In NEPA limits the clearly provisions not consistent requirement preparation state- Despite the current size of the fed- NEPA. “proposals ments to for . . . bureaucracy, things eral realm actions.” notes court tal of the entire Central Utah strong study refused to wait for the be- Project; (2) the is incom- Statement study cause no had been plete in that it is a final statement System majority attempts to Strawberry Collection evade the not, decision, should, contrary but does it fact its and that only, weight authority increments clear elsewhere encompass all in Unit; argu- by the federal courts of nation . Bonneville ing foregoing that each of the decisions Callaway Relying on 507 F.2d at dependence upon involved “crucial Armstrong, the court concluded: judicial Obviously facts.” decisions then, agree the tri- sum, we In presented turn on the facts which are Strawberry system in al court that court, majority has but failed to “major Fed- itself constitutes and of any convincing explanation offer as to is not a mere that it action” and eral why case, the facts of instant which Bonneville of either increment present the same situations as the facts Project re- the Central Utah Unit above, require the cases cited a differ- impact statement for a final quiring ent result. Strawberry something more than com- work before system regional projects water involved Creek Dam. the Currant menced Callaway, Stamm Trout Unlimit- Thus both the 792-93. F.2d at certainly progressed point ed had decided cases Fifth Circuits Tenth and where the federal involved had on the same Club against the Sierra scope concrete notions as to the ultimate here. they assert grounds that regional development, yet the court in on this sub- decision In its most recent unnecessary pre- found each case it reject- again once ject, the Ninth Circuit pare regional acting EIS before on the larger scope EIS of that an phases development. ed claims initial In The Teton NEPA. contrast, ignore if we even the state- had di- been and Reservoir Dam ments the federal that there phases. In Trout Unlim- into two vided present pro- no overall coordinated plaintiffs ar- supra, the ited gram for the of coal re- prepared for the ini- that the gued Plains, EIS ap- sources the Northern Great fatally inadequate be- phase was tial pellants have failed establish that the environmen- it did discuss cause point planning progressed has Phase. After tal of the Second proposal major regional where some upon by relied considering the cases federal action exists which could be the here,13 concluded: the court majority subject of a EIS. situa- those between The distinction Furthermore, although there are un- has been held tions in doubtedly interrelationships some be- subsequent phases must cover the EIS along tween here the us is

Case Details

Case Name: Sierra Club v. Rogers C. B. Morton, Secretary of the United States Department of Theinterior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 16, 1975

Citation: 514 F.2d 856

Docket Number: 74-1389

Court Abbreviation: D.C. Cir.