ELR Citation: ELR 21542
No(s). 91-S-1815 (D. Colo. Sep 14, 1992)

The court holds that an environmental organization has standing to challenge the Secretary of the Interior's alleged failure to issue as a supplemental environmental impact statement (SEIS) the 1991 "dollar-value assessment" regarding wilderness study areas in violation of the National Environmental Policy Act (NEPA). The court first holds that the environmental organization's affidavits are sufficient to support a finding that the organization has suffered an injury-in-fact that is concrete and particularized, and actual or imminent. The affidavits reveal that organization members frequently use several of the areas implicated by the Secretary's failure to act, and establish real and immediate injury. The environmental organization has also submitted that it has suffered "informational injury" due to the Secretary's failure to issue the assessment as an SEIS, as required by NEPA. Injury to informational interests has been held to support standing. Moreover, the court finds that the alleged injuries to the environmental organization fall within the zone of interests sought to be protected by NEPA.

The court next holds that the environmental organization has standing based on its alleged procedural injury from the Secretary's failure to follow the procedures of NEPA. NEPA does not mandate particular results, but simply prescribes the necessary process an agency must perform. Because some classes of procedural duties are so enmeshed with the prevention of a substantive harm, and they are almost certain to affect an agency's substantive decision, a plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. Thus, if the Secretary's recommendations to the President are based on a violation of the process required by NEPA, then the agency's substantive decision has been affected by the violation of a procedural process mandated by Congress. The court holds that this case is distinguishable from the U.S Supreme Court's decision in Lujan v. Defenders of Wildlife, 22 ELR 20913, because this is a case where plaintiffs are seeking to enforce a procedural requirement that if disregarded could impair a separate concrete interest of theirs.

The court further holds that the injuries alleged are traceable to the Secretary's decision not to subject the 1991 "dollar-value assessment" to the congressionally mandated NEPA process. Also, the environmental organization's alleged informational and procedural injuries are directly caused by the failure to disseminate information through the required NEPA process. If the wilderness study areas at issue are not recommended to the president for wilderness protection, they will not proceed to be designated by Congress as wilderness areas. The Secretary's actions and recommendations are an indispensable link in the chain of events by which a wilderness study area can be designated a wilderness area. Moreover, the environmental organization can demonstrate that a substantial likelihood exists that the relief requested will redress the injury claimed.

The court next holds that the case is ripe for judicial review, because the issue of whether the Secretary has violated NEPA is a legal question and the Secretary's challenged action is final. The Secretary's decision has already had a direct and immediate effect on the day-to-day business of the parties, as demonstrated by the environmental organization's affidavits. Moreover, once recommendations are sent to the president based on inadequate procedures in violation of NEPA, there will be no opportunity for any other recommendation by the Secretary as to the wilderness study areas in question. Further, the court finds that delaying consideration until the president has made his recommendations to Congress and Congress has decided which areas should have wilderness protection would impose substantial hardship on the environmental organization. Finally, the court holds that the Secretary's decision not to prepare an SEIS pursuant to NEPA is final agency action subject to review under the Administrative Procedure Act, and the requested relief of requiring the Secretary to submit the 1991 "dollar-value assessment" as a SEIS does not violate the separation of powers doctrine. Just as Congress does not violate separation of powers by structuring the procedural manner in which the executive branch must carry out the laws, the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.

Counsel for Plaintiffs
Laurie Jean Potter
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendant
J. Gregory Whitehair
Patton, Boggs & Blow
1660 Lincoln St., Ste. 1975, Denver CO 80264
(303) 830-1776