Supreme Court Ushers in New Era for CEQ in Warm Springs Case

The full Supreme Court has upheld the order of Justice William O. Douglas, who in his capacity as Circuit Justice for the Ninth Circuit stayed further work on the Warm Springs dam project in Sonoma County, California.¹ The stay will remain in effect pending a decision by the Ninth Circuit on the merits of environmentalists' claims that the environmental impact statement (EIS) prepared by the Corps of Engineers was inadequate. Although the district court rejected the plaintiffs' assertions,² and the district and circuit courts refused to grant a stay, Justice Douglas gave greater weight to the opinions expressed by the Council on Environmental Quality and the Environmental Protection Agency. Both organizations felt that the Corps' EIS left unanswered serious questions regarding the environmental consequences of the dam. CEQ's role in the case suggests that the Council is moving — successfully — toward greater activism in overseeing NEPA.

Some $35,000,000 has already been spent on the project,³ which if completed will impound the waters of a major tributary of the Russian River. The dam was designed in 1967, but site preparation did not begin until 1971. Plans call for an earth structure 320 feet high requiring the excavation of 1.9 million cubic yards of fill from the valley walls. This fill will be dumped into the streambed, blocking the river and forming a reservoir. The dam's intended function is to protect downstream areas from flooding and to increase recreational facilities and water supplies for the residents of Sonoma County.

Plaintiffs are various civic organizations and citizens concerned about the impact of the dam including the Warm Springs Dam Task Force, the League of Women Voters, and the Dry Creek Band of the Pomo Indians. On March 22, 1974, they filed suit in federal district court seeking to enjoin further construction of the dam on a number of grounds, citing in particular two major concerns: (1) the dam would sit atop a geological fault and would therefore expose inhabitants of a nearby town to risk of inundation in the event a tremor ruptures the dam, and (2) inadequate information had been presented on various hazardous substances such as mercury, floride, boron, and asbestos which could enter the reservoir, contaminate the water and the fish in it, and ultimately be ingested by humans. Specifically, plaintiffs challenged continuation of construction on the grounds that the EIS produced by the Corps dismissed as improbable some potentially serious environmental consequences without sufficient study and that the EIS was therefore inadequate.

The EIS for the project contended that earthquake-induced dam failure would not occur, and stated that under NEPA the consequencies of such an event need not be discussed if the likelihood of its occurrence is remote. The district court characterized the testimony on this issue as a difference of opinion between experts. Plaintiffs' experts included the U.S. Geological Survey's seismology expert and earthquake fault geologist among others. Their evidence, supplemented by testimony given by the Corps of Engineers seismic engineering geology consultant and the Corps engineer who designed the dam, constituted a significant statement to the effect that the Corps had not used the best study techniques to determine if the fault might indeed be active and hence dangerous to those living near the dam. They contended that the Corps had not completed enough exploration and testing to determine whether the dam would be safe. Despite the testimony of this distinguished group of experts, the district court was unconvinced.

Facts concerning the various hazardous substances that would enter the reservoir came to plaintiffs' attention gradually before, during, and after the trial. Such facts either had been presented to the Corps or were presented at the time that the plaintiffs became aware of them. The Corps continued its efforts despite these warnings.

Plaintiffs stated that an abandoned mercury mine would be flooded by the reservoir that would be created by the dam. A mercury expert for the California Department of Public Health contended that the flooding would possibly cause contamination of the food chain. The Corps' own expert admitted this possibility but argued that the full extent of the danger could only be determined after the Corps had tested the area further. The flat assertion in the EIS that no contamination would occur was accepted by the district court despite evidence to the contrary.

Plaintiffs also discussed the consequences of building the reservoir over a geothermal field lying beneath Warm Springs. A number of plaintiffs' experts contended that flouride will be emitted from springs flowing from the field into the reservoir at a rate of four times the maximum safe level. This problem was not addressed in the EIS. Boron particles may also be emitted from these springs. Plaintiffs' experts contended that levels of boron [4 ELR 10131] in the reservoir will range from 85 to 97 times the allowable maximum. The Corps' EIS dealt with this issue only in passing.

The EIS failed to discuss a number of factors brought to light by the plaintiffs. For instance, plaintiffs presented evidence of the presence of crushed serpentine in the geologic faults beneath the dam site, which would result in the dispersion of substantial quantities of asbestos fibers into the reservoir. The plaintiffs contended that insufficient testing had been performed to indicate the extent of this hazard. Only after trial did the Corps respond to this contention by reaching an agreement with EPA and the U.S. Geological Survey to undertake a study of water quality questions arising out of construction of the dam.

After the trial, the plaintiffs brought to the attention of the Corps a further potential hazard, arsenic, recently discovered in the area affected by the dam. The Corps has agreed to include an assessment of this hazard in its study.

Despite the presentation of evidence on several serious potential hazards at the trial, the district court nonetheless held that the EIS was not clearly erroneous in its contention that hazardous substances would not reach dangerous levels in the water. In the court's view, the EIS thoroughly revealed and discussed the dam's potential environmental impacts, and thus adequately complied with the requirements of NEPA. Some alleged hazards, such as the danger from asbestos fibers, the court dismissed as too speculative to warrant comment in the EIS.

The District Court dismissed the complaint on June 1, 1974, thus permitting the Corps to proceed with construction. The plaintiffs immediately filed an appeal in the Ninth Circuit, at the same time requesting an order staying further work on the project pending final disposition of the appeal on its merits, not likely before early 1975. The Ninth Circuit denied the stay immediately. Plaintiffs then appealed to Justice Douglas on the sole question of whether the Corps should be enjoined until such time as the Ninth Circuit decided the appeal on the merits.

Justice Douglas had before him the opinion of the district court that approved the EIS as sufficient, as well as the denial of a request for a stay by both the district and the circuit courts. But two CEQ letters stating that the EIS information was insufficient and a letter from EPA to the Solicitor General expressing reservations about the project were apparently of greater significance to him. As Justice Douglas succinctly stated:

"The views of two federal agencies (EPA and CEQ) most intimately familiar with environmental issues and the requirements of the National Environmental Policy Act have been filed with the Court. They undermine the determination of the district court."⁴

CEQ had informed the Corps of its negative position on the sufficiency of the EIS before the final review period expired. The Corps disregarded this opinion and let contracts for the work soon thereafter. This opinion, contained in a letter from CEQ to the Corps, was admitted as evidence at the trial. The district court did not mention the CEQ letter. Justice Douglas, after receiving the case, sought the views of EPA on the project through the Solicitor General, who in turn asked for CEQ's position as well. EPA, which had previously stated that it had no objection to the EIS, now submitted a letter which noted that disturbing new evidence had come to light during the trial, and expressed reservations about the adequacy of the information in the EIS. CEQ reaffirmed its position that more information was needed on certain points. In a lengthy letter to Solicitor Bork, CEQ stated:

"Information revealed at the trial strongly reinforced our original reservations about the seismic and other problems, and raised new concerns over potential hazards…. It is the Council's position that the best interests of the government would be served by halting construction work … until the appeal is decided on its merits."⁵

CEQ's objections to the EIS apparently convinced Justice Douglas that the stay should be granted pending appeal. The correctness of this determination is, from an environmental viewpoint, clear from the alleged facts of the case. The critical feature of this case, however, is less the result than the weight which Douglas (and subsequently the full Court) gave to CEQ's objections and the role given to CEQ as the administrator of NEPA.

It is an established principle of law that an administrative agency's determination should be accorded great weight by the courts in cases involving judicial review under the Administrative Procedure Act.⁶ In Warm Springs however, there was a conflict of agency opinion between CEQ and the Corps of Engineers. Douglas' opinion not only states that agency opinion is to be given great weight but that CEQ is the agency statutorily designated to administer NEPA and to insure that environmental considerations are sufficiently assessed in all federal projects. Here Douglas relies on EDF v. TVA⁷ in which the Sixth Circuit Court of Appeals held:

"Such an administrative interpretation by the agency (CEQ) charged with implementing and administering the NEPA is entitled to great weight."

In the past, CEQ has tended to emphasize its role as advisor to the President and to federal agencies, and to deemphasize its statutory role as overseer of compliance with NEPA. The advisory role may be far less significant [4 ELR 10132] in the long run than the oversight function. While CEQ had often taken positions on the need for, or adequacy of, an impact statement, the project agencies have apparently believed that they, not CEQ, made the final determinations on such questions. The Douglas opinion offers CEQ clear confirmation of its role in superintending project agency compliance with the requirements of NEPA. The opinion reflects the language of § 204(3) of NEPA, which charges CEQ to review and appraise the various programs and activities of the federal government in light of the goals of NEPA.Even more significantly, Douglas cites directly 42 U.S.C. 4332 (2) (B) and (H) which require federal agencies to consult with and to assist CEQ in evaluating proposed government actions, implying that it is proper to view CEQ as the final arbiter of the adequacy of impact statements, and that its position in this regard is therefore to be accorded greater weight in appellate court decisions than those of the project agency or of the district court. It is important to note, however, that at the same time, the opinion left untouched the primary responsibility of the project agencies for final approval or disapproval of proposed projects, and as a part of that task, for weighing projected benefits against environmental and other costs. Deference to CEQ is limited to the issue of the sufficiency of the information supplied in the EIS. Although CEQ's responsibility for reviewing impact statements has always been in NEPA, there have been only about fifteen cases per year in which CEQ has formally found impact statements to be inadequate. In response to an ELR inquiry, CEQ has reported that requests from agencies and others for EIS evaluations since the Warm Springs decision was issued suggest that the volume of such requests will increase substantially. Parties concerned with issues of EIS adequacy are now likely to move quickly to seek CEQ approval of their EIS.

The Douglas opinion also fits well with a new relationship that had been developing between CEQ and the Justice Department prior to the decision. The Justice Department will now consult with CEQ on the adequacy of an EIS when faced with a NEPA suit. This is to be done before the final government position is developed. If such cooperation occurs, it will mean that CEQ's environmental concerns will become a regular input into the determination of the government's position.

CEQ will need to protect its deliberations from one danger likely to flow out of this confirmation of its authority to rule on impact statements, the danger that its assessments will be subjected to more intense political pressures. CEQ's strength to date derives in large part from its reputation for objectivity and its resistance to becoming politicized.

Finally, the Douglas opinion cites with apparent approval⁸ — but falls short of fully embracing — the plaintiff's contention that irreparable harm can result merely from work on a project such as the Warm Springs dam which will prejudice future agency choices. The Corps had argued that earthmoving at the site was taking place only in places where significant earthmoving had occurred in the past, and that therefore, no irreparable harm could result.

While the Warm Springs plaintiffs still face a battle on the merits before the Ninth Circuit, Justice Douglas' stayorder and the affirmance by the full Court do accomplish two ends. First, they hold off action on an environmentally questionable dam project for six months. Second and more important in the long run, they reinforce the role of CEQ as the administrator of NEPA and accord that agency's determinations considerable weight relative to those of a district court and of other agencies.

1. Warm Springs Dam Task Force v. Gribble, No. A-1146 (U.S., June 17, 1974), 4 ELR 20669.

2. Warm Springs Dam Task Force v. Gribble, No. C-74-0649 SW (N.D. Cal. June 1, 1974), 4 ELR 20661.

3. The Flood Control Act of 1962, Public Law 87-874, 87th Cong. 2d Sess. 33 U.S.C. 426 3-g 701 s-n.

4. Warm Springs Dam Task Force v. Gribble, (U.S.), 4 ELR 20667.

5. Letter from Gary Widman, General Counsel of the Council on Environmental Quality, to Robert Bork, Solicitor General, regarding the Warm Springs case.

6. Trafficante v. Metropolitan Life Ins. 409 U.S. 205 (1973). Griggs v. Duke Power Co., 401 U.S. 424 (1971).

7. EDF v. TVA, 468 F.2d 1164 (6th Cir. 1973).

8. See footnote 3 in the Circuit Justice's opinion at 4 ELR 20668.