HILL, Circuit Judge.
Appellant instituted this action in the United States District Court for the District of New Mexico on January 25, 1971, challenging the legality of a grant made by appellees through the Economic Development Administration of the Department of Commerce (the E.D.A.) equal to 80% of the estimated cost of constructing a road in the Elk Mountain area of San Miguel County, New Mexico.
On November 27, 1968, the Board of County Commissioners of San Miguel County, New Mexico, acting through the North Central New Mexico Economic Development District, applied for a grant of funds from the E.D.A. equal to 80% of the total estimated cost of constructing a proposed road in the Elk Mountain area of San Miguel County. Pursuant to its authority under the Public Works and Economic Development Act of 1965
The jurisdictional question is not raised on appeal. The district court found jurisdiction, based primarily on the Administrative Procedure Act.
Appellant asserts that the granting of funds by the E.D.A. to San Miguel County was "a major federal action" within the meaning of § 102(2) (C) of the National Environmental Policy Act,
A reading of the record reveals that the parties are in agreement that the proposed road is "a major federal action" within the meaning of § 102(2) (C) of the N.E.P.A. Furthermore, both parties agree that the environmental impact statement is to be prepared by the agency with overall responsibility for
The second question presented for solution is at what point in time must the environmental impact statement be available. Appellant argues that preparation of the environmental impact statement after the offer of grant has been made is a meaningless gesture. Appellee contends that preparation and submission by the Forest Service of its preliminary environmental impact statement on February 9, 1971, fully meets the requirements of the N.E.P.A. This Court has recently dealt with the requirements of the N.E.P.A. The mandates of the N.E.P.A. pertain to procedure and not to substance, that is, decision-making in a given agency is required to meet certain procedural standards, yet the agency is left in control of the substantive aspects of the decision.
Case law on the question of the point in time at which the environmental impact statement must be available is understandably sparse. The N.E.P.A. became effective only on January 1, 1970. The Act was applied to projects then existent. In such situations, the requirements of the N.E.P.A. were satisfied if the environmental impact statement was prepared before the contract in question was executed ; the project could be evaluated open-mindedly if work had not commenced.
Preparation and submission of the environmental impact statement at the point in time selected by the Forest Service is not a meaningless gesture, as appellant argues. The Forest Service must still approve the location and the construction plans and specifications of the proposed road before a grant of right-of-way easement necessary to permit the use of National Forest Lands for highway purposes is possible. The final environmental impact statement will provide the basis on which the Forest Service will decide on the issuance of the right-of-way easement. The trial court thus has found that the directives of the N.E.P.A. and the recommendations issued pursuant thereto have been satisfied to date. This Court is bound to uphold such finding unless unsupported by substantial evidence or clearly erroneous. Northern Natural Gas Co. v. Grounds, supra. The finding of compliance with the N.E.P.A. to date is supported by substantial evidence, and is not clearly erroneous.
MURRAH, Circuit Judge (dissenting) :
It is agreed that both the E.D.A. action in making the grant of funds and the Forest Service action in granting the right-of-way easement were "major Federal actions" as that term is used in the N.E.P.A. We also agree that the Forest Service was the "lead agency" with the duty of preparing the environmental impact statement.
However, after a close reading of the statute and its implementing regulations, it is my opinion that they clearly express the intention that "compliance to the `fullest' possible extent would seem to demand that environmental issues be considered at every important stage in the decision making process concerning a particular action . . .." Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1118 (D.C. Cir. July 23, 1971). On this record it does not appear that E.D.A. has ever considered the environmental consequences of its action. I do not believe that the impact statement prepared by the Forest Service after the grant of funds had been made satisfied the statutorily imposed duty of E.D.A. to consider the environmental consequences of its action to the "fullest possible extent."
I would reverse and remand with directions to vacate the E.D.A. offer of grant in order to permit E.D.A. to comply with the procedural safeguards set out in the statute before taking the major Federal action of granting funds for this project.