Judicial Implementation of the National Environmental Policy Act

Judicial Implementation of the National Environmental Policy Act: Environmental Defense Fund v. Hardin; Sierra Club v. Hardin; National Helium Corp. v. Morton; Northeast Area Welfare Rights Organization v. Volpe; Lloyd Harbor Study Group, Inc. v. Seaborg

On April 14, 1971 the U.S. District Court for the District of Columbia denied plaintiffs' motion for a preliminary injunction in Environmental Defense Fund v. Hardin (Mirex), 1 ELR 20207. See also 1 ELR Dig. [44]. Plaintiffs sought to bar the Secretary of Agriculture from undertaking a program to control the imported fire ant in several southeastern states by aerial application of the pesticide Mirex. Defendant's motion to dismiss was earlier denied December 1, 1970. On its face, the court's ruling raises questions as to exactly what remains to be litigated at trial since Judge Gasch, in declining to issue the requested preliminary injunction, held not only that plaintiffs had failed to prove they would suffer irreparable injury in the event of such denial and that they had further [1 ELR 10066] failed to demonstrate the likelihood of success when the matter is finally determined, but also, that defendants had complied with the substantive requirements of NEPA, the ultimate issue of the case itself. It would appear that to prevail at trial plaintiff would have to persuade the court not only that defendant's conclusions in balancing the dangers of Mirex against anticipated positive results were incorrect, but that defendant's research was less diligent than the court stated in its ruling denying plaintiff's request for preliminary relief.

Neither the court nor the Department of Agriculture was under any illusions concerning the danger of pesticide. The bait is prepared by impregnating one and one-quarter pounds of screened corn cob grits with soybean oil containing one-seventeenth of an ounce of Mirex, the standard dose for an acre of infested land. When administered in large doses, Mirex kills shrimp, crabs and other marine organisms, as well as other species of ants. In heavy doses it induces tumors in animals and is a potential danger as a carcinogen for man. The Environmental Protection Agency has commenced administrative procedures to determine whether the registration of Mirex under the Federal Insecticide, Fungicide and Rodenticide Act should be cancelled. The court concluded that the outcome of the EPA review would have no effect upon the court's own jurisdiction to consider the matter independently under NEPA. Nor, it held, did the existence of other regulatory legislation excuse defendant from compliance with NEPA. As did the court in National Helium Corp. v. Morton, infra, the court here viewed the presence of other, more specific federal legislation as complementary to rather than pre-emptive of requirements under NEPA. Compare Ely v. Velde, infra. Discussing various NEPA provisions as they applied to the case at bar, the court stated that in specifying certain procedural requirements with which executive agencies must comply before initiating a program which will significantly affect the environment, "Congress did not intend by the Act to relocate or diminish the decision-making responsibility currently existing with respect to such programs, but it did intend to make such decision making more responsive and more responsible." 1 ELR 20207, 20207. Though couched in generalities, the court's summary and interpretation of the various NEPA provisions which it found pertinent does impose clear and positive duties upon administrative agencies, and it does so in language sufficiently sweeping so as to be of interest to future litigants:

(1) Section 102(2)(A). "This section makes completion of an adequate research program a prerequisite to agency action … this provision of the Act requires a diligent research effort, undertaken in good faith, which utilizes effective methods and reflects the current state of the art of relevant scientific discipline." 1 ELR 20207, 20208.

(2) Section 102(2)(C). "The [environmental impact] statement must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation. The statement should contain adequate discussion of alternative proposals to allow for program modification during agency review so that the results to be achieved will be in accordance with national environmental goals." 1 ELR 20207, 20208.

(3) Section 102(2)(G). "This directive recognizes the growing importance of the environmental sciences and directs the agencies to undertake research of a broader scope than may have been traditionally within their jurisdiction." 1 ELR 20207, 20208.

Having thus analyzed the investigative and reporting mandates of NEPA, the court stops at the water's edge of one of the great unanswered questions under the Act: can an agency which has diligently researched and frankly set forth the environmental risks inherent in its proposed action then proceed down the path of environmental ruin, or is it bound to alter its proposed actions in accordance with knowledge gained by virtue of its own research? See Peterson, "An Analysis of Title I of the National Environmental Policy Act of 1969," 1 ELR 50035, 50040-45.On one limited interpretation NEPA would appear only to impose procedural duties on the various agencies. Yet it would be strange indeed were these procedural duties to be judicially interpreted in such a fashion as to create no corresponding substantive requirements whatsoever. Compliance with NEPA would then be reduced to a game of administrative hopscotch, with the "winning" agency touching each base in turn but returning always to where it began.

In the instant case, while not directly ruling upon whether the agency's determination to proceed with the Mirex program could be squared with its underlying environmental findings, and not permitting plaintiff to offer opposing viewpoints, the court nonetheless expressed satisfaction with assurances by the Department of Agriculture that no forested areas, estuarine areas, game and wildlife refuges or those areas contiguous to rivers are to be treated; that studies by U.S.D.A., Department of Interior and other scientists on Cat Island off the Mississippi coast revealed that although Mirex was being concentrated in non-target organisms it "dissipated rapidly after equilibrium was reached," 1 ELR 20207, 20209; and that alternative methods including ground application of Mirex and the use of other pesticides were studied but found less effective, more dangerous or both. (At least some of defendant's studies were undertaken after the lawsuit was filed. The Department of Agriculture [1 ELR 10067] further indicated that the chronic effects if any, of Mirex in non-target organisms are now being studied.)

Despite some expansive language by the court concerning the scope of agency investigation and reporting required under the Act, the thrust of the court's ruling must be viewed as restrictive in its interpretation of NEPA. Reduced to basics, the court held that a preliminary injunction will not issue where the agency has acted in "good faith," where its decision is based upon something more than a superficial, technical compliance with the NEPA procedural requirements. In such circumstances the court will not hear opposing evidence in order to determine whether the great weight of scientific opinion supports or contradicts the agency's conclusions.

Interpretation of NEPA in the Tongass National Forest case: Sierra Club v. Hardin

Sierra Club v. Hardin (Tongass National Forest), 1 ELR 20161 (D.Alas. March 25, 1971), dealt with elsewhere in this month's Summary and Comments with respect to matters of standing and the scope of judicial review, also involved judicial interpretation of NEPA in three important areas:

1. What constitutes "major federal actions significantly affecting the environment" for purposes of compliance with § 102(2)(C) of NEPA.

2. The retroactive application of NEPA to actions the consideration of which was begun prior to January 1, 1970, which was the date the Act took effect.

3. The property of reliance by the involved federal agency on environmental studies conducted by private groups.

The NEPA questions arose solely in connection with the issuance by the Department of Agriculture on April 15, 1970 of a special use permit to United States Plywood-Champion for construction of a pulp mill-sawmill complex on 201.22 acres of national forest land at Echo Cove near Berners Bay. Construction of the mill with an annual requirement of more than 175,000,000 board feet of timber was required under terms of the initial timber harvesting contract.

Defendants argued that construction of the mill complex did not constitute a major federal action requiring the filing of a 102 statement.¹ The court disagreed, noting that the Secretary's action in belatedly filing a "hastily compiled impact statement," 1 ELR 20161, 20171, belied his later assertions of the Act's nonapplicability. In a footnote, the court added: "While in the future it may be possible to develop some per se categories of major federal actions, past experience with the pulp mills dictates that for the present complete investigation of the impact of individual mills will continue to be appropriate." 1 ELR 20161, 20171.

The same footnote disposed of defendants' contentions that NEPA could not be retroactively applied in the case at bar so as to require an environmental impact statement. See Summary and Comments, 1 ELR 10004 and cases cited therein. See also Peterson, "An Analysis of Title I of the National Environmental Policy Act of 1969," 1 ELR 50035, 50048-49. Defendants had maintained that despite the fact that the use permit was not issued until April 24, 1970, the Echo Cove site had previously been agreed upon informally and United States Plywood-Champion had spent considerable funds studying the area and stockpiling materials at that location. Distinguishing this situation from instances where a federal outlay was involved,² the court held:

While it is true that U.S.P. [United States Plywood-Champion] had expended considerable sums of money investigating the Echo Cove mill site and had definitely decided to use that location prior to the effective date of NEPA, the Act speaks to the federal government, not individuals doing business with the government. Prior to April 24 when the first use permit was issued, neither party was bound to construct the mill at Echo Cove. It was the granting of the permit in that location which constituted a major federal action, and as the permit was granted after January 1, 1970, NEPA was applicable. Indeed, the Secretary so interpreted the Act and went through the motions of compliance. 1 ELR 20161, 20171.

To support the conclusions contained in its sketchy environmental impact statement, the Forest Service relied heavily if not exclusively upon a study undertaken by a "blue ribbon" panel of experts previously assembled by United States Plywood-Champion. Results of the study were published in late 1969 by the Institute of Marine Science at the University of Alaska. The court concluded that given [1 ELR 10068] the excellence of the panel, the advanced stage of planning as of January 1, 1970 and the cost of further delay, the Forest Service was justified in relying upon the industry's expertise in the area rather than on its own. But obviously uneasy with the precedent it was establishing, the court added: "Nothing in this opinion should be construed as implying that the procedures followed by the Forest Service in its efforts to comply with NEPA in this case will be found acceptable in the future under circumstances where it is fair to impute notice of the Act's provisions to all parties at or before the time a major federal project is conceived." 1 ELR 20161, 20171. The problems and potential inequities involved in situations where federal agencies delegate the preparation of 102(2)(C) statements to private parties were dealt with in last month's Summary and Comments, 1 ELR 10025-26. It must be surmised that the court's concern with these problems and inequities was implied in its cautious approach in ruling on the matter and the expressed limits it placed on that ruling. The proliferation of such agency practices may cause reviewing courts to look more closely at final administrative determinations. A healthy deference toward the special expertise of an administrative agency is one thing. Deference toward the expertise of a private party vitally interested in seeing that a particular project is undertaken is something else. With respect to the latter instance, many criticisms and observations have already been made. 1 ELR 10025. To those observations should be added that the agency, in balancing the assertions of competing interests without undertaking an independent investigation of its own, is performing a quasi-judicial function, and its environmental conclusions should be subject at least to the same scope of review as in any other quasi-judicial administration proceeding.

Conflict between NEPA and the National Helium Act: National Helium Corp. v. Morton

The duty of the Department of Interior to consider the requirements of NEPA before terminating contractual relations with helium producers under the National Helium Act was explored in National Helium Corp. v. Morton, 1 ELR 20157 (D.Kan. March 22, 1971). The case involved a variation of the problem encountered in Ely v. Velde, 1 ELR 20082 (E.D.Va. 1971), i.e., the possible conflict of NEPA requirements with those of other pertinent federal legislation. See Summary and Comments, "The Ely Case," 1 ELR 10023. The court in Ely held that an agency need not comply with NEPA's provisions where the agency is bound to act contrary to NEPA, in an environmentally damaging manner, under more specific, mandatory legislation. In National Helium, however, the action of the Department of Interior in terminating the contracts was discretionary, not mandatory. And in any event, sound practice would dictate that areas of potential conflict be publicly explored by the agency in question through the vehicle of the environmental impact statement. Here, it was the Department of Interior's total failure to recognize the existence of either substantive or procedural duties created by NEPA which the court found objectionable.

Plaintiffs in National Helium were all large helium producers supplying the federal government under contract from gas produced on the Kansas-Hugoton range, the greatest source of helium in the free world.Pursuant to § 12.1 of the National Helium Act, the Secretary of the Interior reserved in the contract the right to terminate the various contracts if, in his opinion, the discovery of large new helium resources or a substantial diminution in helium requirements or any circumstance of a similar nature rendered continued production unnecessary. On January 26, 1971 Undersecretary of Interior Fred. J. Russell informed plaintiffs that the contracts would be terminated sixty days later due to discoveries of new fields, diminished governmental requirements, and new technological developments permitting the production of the gas utilizing theretofore impractical methods. Plaintiffs brought the action to prevent the announced termination, pending study of the environmental impact of the discontinuance of production in the Kansas-Hugoton field.

Not only were plaintiffs themselves an odd group to raise environmental objections to administrative activity — for the most part they were subsidiaries of large oil companies — but the concerns which they expressed were probably not the ones foremost in the minds of NEPA's draftsmen.The environmental harm alleged in National Helium consisted neither of pollution, atmospheric or otherwise, nor of the destruction of any natural sanctuary necessary for "a wide sharing of life's amenities." Rather, if the contracts involved were terminated, the helium under the Kansas-Hugoton field would escape into the atmosphere. If the contracts were not terminated, plaintiffs would capture the helium and sell it to the government for eventual commercial use. Arguably, defendants, by permitting the helium to be "wasted" were neglecting their responsibilities under §§ 101(b)(1), (3), (4), and (5) of NEPA. But this type of "waste" was at best on the periphery of environmental concern when the Act was passed. Nevertheless the court held that NEPA must be construed in conjunction with the National Helium Act. "This Act [NEPA] has recently been interpreted by federal courts, and is held by this Court as nothing less than a mandate to the Secretary in the case at bar, to either follow the prescribed procedure in taking relevant action or to show that it is not possible within the [1 ELR 10069] meaning of NEPA. This Act must be construed in connection with the Helium Act, and in so doing, the Court concludes that it appears that the defendants have failed to comply with these acts and that the plaintiffs have standing to bring this action." 1 ELR 20158, 20159. Further noting that the helium would be lost in the atmosphere if not captured with the escaping natural gas, and that the Secretary's termination letter contained no reference to NEPA or to the Interior Department's own environmental regulations, the court concluded: "It would appear that the basis for decision by the Secretary to terminate these contracts was not based upon a proper or legal administrative foundation required by the contracts in question, the Helium Act and the National Environmental Policy Act." 1 ELR 20158, 20160.

The principle for which the National Helium decision stands, that NEPA should be applied by administrative agencies at a sufficiently early stage to avoid conflict with other pertinent legislation, and that where such conflict is unavoidable it should at least be formally acknowledged, is sound — far sounder perhaps that the decision itself. See NEPA § 103, 1 ELR 41010.

Ripeness and NEPA: Northeast Welfare Rights Organization v. Volpe; Lloyd Harbor Study Group, Inc. v. Seaborg

Two cases reported in this month's ELR dismiss actions brought in whole or in part under NEPA on the grounds that the issues raised are not ripe for determination by the courts. In Northeast Area Welfare Rights Organization v. Volpe, 1 ELR 20186 (E.D.Wash. Dec. 3, 1970), plaintiffs' request for a preliminary injunction against implementation of a planned north-south freeway connector linking Interstate 90 with U.S. 395 was denied. Despite federal financing for the Spokane Metropolitan Area Transportation Study, defendants maintained that no final approval had been sought from the Department of Transportation for funds under the Federal Aid Highway Program and that there were no immediate plans to seek federal funds for construction of the connector. Under the circumstances the court held that it was premature to require compliance by DOT with NEPA.

DOT's compliance with NEPA, however, must begin as early as possible in the course of the agency decision-making process if NEPA's key provisions for study, consultation and exploration of alternatives are made effective. The implementation of NEPA involves a great deal more than the preparation and filing of impact statements; it involves a change in attitude and approach beginning the day federal action is conceived. Thus while a court may find that the preparation of a 102 statement is not required before planning and other activities which will lead to federal action significantly affecting the environment may proceed, the court would put its decision to deny relief on a sounder basis if it required the agency to show how it is implementing NEPA "to the fullest extent possible" (sec. 102) and "as early as possible" (CEQ guidelines, 1 ELR 46049) as reassurance that the act is being implemented and that an adequate 102 statement can be assembled at the proper time. Furthermore, in exploring the extent of early compliance with NEPA the court should be especially diligent to predict and forestall subsequent agency attempts to justify proceeding with a project simply because the project is far advanced and funds have been expended, before environmental impacts were properly evaluated.

In Lloyd Harbor Study Group, Inc. v. Seaborg, 1 ELR 20188 (E.D.N.Y. April 2, 1971), plaintiffs sought a court order which would require the Atomic Safety and Licensing Board, then considering an application by Long Island Lighting Company for a permit to construct a nuclear power plant in Shoreham, Long Island, to decide what effect, if any, NEPA would have on the Board's determination of the application. The Board had refused to hear evidence on any non-radiological effects of the plant, and plaintiffs' interlocutory appeals within the agency had proven fruitless. The State of New York intervened in the case on behalf of plaintiffs. Although warning the Board that its ruling was probably illegal and could subject its final determination to reversal at the appellate level (see similar language in a similar case: Thermal Ecology Must be Preserved v. AEC, 1 ELR 20078, (D.C.Cir. 1970)), the court held the matter not ripe for determination by the district court pending final administrative ruling. The court was strongly influenced by the fact that the federal circuit courts of appeal rather than the district courts have jurisdiction to hear appeals from determinations made by the AEC.

1. In fact, such a statement was filed by the Secretary on August 12, 1970, some six months after the court action was instituted and almost four months after the use permit was issued. 1 ELR Dig. [81], No. 32. An earlier letter from the Secretary to his fellow cabinet officers requesting their comments on the environmental impact of the proposed mill was circulated June 25, 1970. Under the Interim Guidelines of the Council on Environmental Quality, April 30, 1970, 35 Fed. Reg. 18219, 1 ELR 46001, environmental impact statements were required for "Projects and continuing activities … [i]nvolving a Federal lease, permit, license, certificate or other entitlement for use." The final guidelines published April 23, 1971, 36 Fed. Reg. No. 79, 1 ELR 46049, offers the following interpretation: "The statutory clause 'major Federal actions significantly affecting the quality of the human environment' is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated). Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is prepared. Propsed actions, the environmental impact of which is likely to be highly controversial, should be covered in all cases. …"

2. Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238 (M.D.Pa. 1970); Brooks v. Volpe, 1 ELR 20045 (W.D.Wash. 1970); Investment Syndicates, Inc. v. Richmond, 1 ELR 20004 (D.Ore. 1970).