ELR Citation: ELR 20001
No(s). 72-2997 (9th Cir. Nov 9, 1973)

Using the abuse of discretion provision, §706(2)(A), of the Administrative Procedure Act as the standard for review, the court upholds a trial court ruling that the final EIS for the New Melones Dam project adequately fulfills the requirements of NEPA. The court then examines the contents and implications of California State Water Resources Control Board Decision 1422, which was issued shortly after the appeal was taken and limits the project's storage to one-half its designed capacity. After noting that the Board may modify the Decision and that the district court has reserved jurisdiction over future disputes concerning the project's operation, the court concludes that despite Decision 1422, no alteration of the lower court's ruling is warranted, and it vacates all injunctions against further construction of the project. The court observes that NEPA has served its purpose regarding this project by stimulating a full examination of objections, adverse consequences, alternatives, and possible operational limitations, and that the issue is now whether the project is justified in the light of all these known and possible consequences, a question for Congress rather than the courts to decide. For the district court's opinion see 3 ELR 20294; see also Comment at 3 ELR 10062.

Counsel for Plaintiffs
Michael W. Palmer
Thomas J. Graff
Environmental Defense Fund, Inc.
2728 Durant Avenue
Berkeley, CA 94704

Counsel for Intervenors
See 2 ELR 20735

Counsel for Defendants
David E. Golay Asst. U.S. Attorney
450 Golden Gate Avenue
San Francisco, CA 94102