MATTHES, Chief Judge.
This is another of the rapidly increasing number of cases which are focused in large part upon, and result from the adoption of, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, which was passed by the Congress of the United States in December, 1969, and became effective January 1, 1970.
This litigation was triggered by the construction of a project known as Gillham Dam on the Cossatot River in Arkansas. The case is here on appeal by plaintiffs from the final order of the United States District Court, Eastern District of Arkansas, dissolving an injunction entered by that court on February 19, 1971, and dismissing the case.
I. HISTORY OF THE PROJECT
Judge Eisele has recorded a clear and graphic description of the Cossatot River and its environs, and we are not inclined to attempt to improve on what has been written. See 325 F.Supp. at 744-745. We are content to pinpoint the subject by making a few observations
During normal water stage the Cossatot, like many mountainous streams, is a valuable asset to man. The splendor of the scenery is magnificent. The clean water attracts many species of game fish, and wildlife abounds in the area. Fishermen, hunters and outdoor enthusiasts frequent the region; the rapids and pools challenge canoeists. But there is another side to the coin. When heavy rains descend in the Ouichita Mountain Range, as they have from time immemorial, the normal flow of water in the Cossatot becomes a raging torrent and the floods become an enemy to man. Thus, competing forces have aligned themselves for and against the dam. In part, the proponents are interested in controlling the floods, creating the recreational facilities and commercial development which accompany man-made lakes, and supplying pure water to the City of DeQueen, Arkansas. The opponents advance, among other arguments, the value of conserving one of the few remaining free-flowing rivers in southwest Arkansas, the sports of stream fishing and hunting, and the diversity of canoeing experiences.
Gillham Dam is a part of a massive flood control plan authorized by Congress in the Flood Control Act of 1958.
II. HISTORY OF THE LITIGATION
The complaint was filed in the United States District Court on October 1, 1970. The plaintiffs are the Environmental Defense Fund, Inc. (EDF), Ozark Society, Arkansas Audubon Society, Inc., Arkansas Ecology Center, Platt Remmell, Jr., and Russell Harper. EDF is a nonprofit membership corporation organized under the laws of the state of New York. Ozark Society, Arkansas Audubon Society, Inc., and Arkansas Ecology Center are nonprofit membership organizations established under the laws of the state of Arkansas. The two individual plaintiffs are citizens of Arkansas. Initially, the named defendants were the Corps of Engineers of the United States Army,
The district court dealt with the case in a series of six memorandum opinions
On January 13, 1972, defendants filed with the district court the new environmental impact statement (EIS) and simultaneously filed a motion for summary judgment in which they requested the court to dissolve and set aside the injunction theretofore granted. After an evidentiary hearing on April 27 and 28, 1972, the court approved the new impact statement, granted summary judgment for defendants and dissolved the injunction. The court's supporting opinion, the sixth one filed, is reported at 342 F.Supp. 1211 (May 5, 1972). It is from this final order that plaintiffs bring the present appeal.
Appellants contend that, contrary to the conclusion of the district court, appellees have not sufficiently complied with NEPA for the following reasons: (1) the objectivity of the final EIS was tainted by the alleged bias of its draftor; (2) the final EIS makes a less-than-full disclosure and contains important errors of fact; (3) the defendants have failed to study, develop and describe appropriate alternatives; and (4) the administrative determination by defendants that the dam should be constructed was reviewable by the court on the merits.
III. NATIONAL ENVIRONMENT POLICY ACT OF 1969
In enacting NEPA,
Section 101 of NEPA requires the federal government to use "all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" in order to achieve a wide range of environmental goals. Section 102, on the other hand, contains a series of specific procedural directives to the federal agencies, designed to implement the national environmental policy already established by § 101.
IV. ADEQUACY OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT
Appellants argue that the final EIS filed by the Corps falls short of the "detailed statement" required by § 102(2) (C) of NEPA for two reasons: (1) the statement contains an inadequate and inaccurate disclosure of fact; and (2) the statement lacks objectivity either on its face or because of the alleged bias of the District Director responsible for its preparation. We disagree.
The final EIS submitted by the Corps of Engineers in this case was prepared at an alleged cost of approximately $250,000, and is 200 pages in length. Attached to the statement are six appendices containing an additional 1500 pages.
The main text is divided into eight divisions which describe, respectively, the project, the environmental setting without the project, environmental impact of the proposed action, adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between short term uses of man's environment and the maintenance and enhancement of long term productivity, irrevocable or irretrievable commitment of resources which would be involved in the proposed action should it
We have read the statement and found it to contain a full and accurate disclosure of the information required by § 102 (2) (C).
Nevertheless, appellants contend that the EIS is partial and biased, either on its face or as the work product of a biased agency official. The latter claim is based upon statements allegedly made by Colonel Vernon W. Pinkey, District Engineer in charge of preparing the EIS until his retirement, before a local Chamber of Commerce meeting, assuring his listeners that the Gillham Dam would definitely be built.
We agree with appellants, as did the district court, that NEPA "requires the agencies of the United States government to objectively evaluate their projects." 342 F.Supp. at 1222. However, we do not agree with the view implicit in the contentions of appellants that NEPA requires agency officials to be subjectively impartial. The purpose of the procedural requirements of § 102 is
Calvert Cliffs' Coordinating Committee v. U. S. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C. Cir. 1971). Thus NEPA assumes as inevitable an institutional bias within an agency proposing a project and erects the procedural requirements of § 102 to insure that "there is no way [the decision-maker] can fail to note the facts and understand the very serious arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement." 342 F.Supp. at 1218. An institutional bias will most often be found when the project has been partially completed. Several courts have held that an agency involved in an ongoing federal project may approach the required compliance with § 102 differently from what might be required with respect to new projects. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal.1972); Morningside-Lenox Park Assn. v. Volpe, 334 F.Supp. 132, 145 (N.D.Ga.1971). Here, the Gillham Dam project was almost
342 F.Supp. at 1223.
The test of compliance with § 102, then, is one of good faith objectivity rather than subjective impartiality. Committee for Nuclear Responsibility v. Schlesinger, 404 U.S. 917, 918, 92 S.Ct. 242, 30 L.Ed.2d 191 (1971) (Douglas, J., dissenting from denial of injunction); Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C. Cir. 1971); Calvert Cliffs' Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115 n. 5; Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 789 (D.Maine 1972); Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1403 (D.D.C.1971).
Employing this standard, we are satisfied that the district court's findings and conclusion as to the objectivity of the EIS are supported by substantial evidence. Therefore we decline to hold that appellees have not complied in good faith with the procedural requirements of § 102(2)(C).
V. DEVELOPMENT OF ALTERNATIVES
Appellants also contend that appellees have failed to develop important and reasonable alternatives to the proposed dam project, in violation of § 102(2) (D) of NEPA. Section 102(2) (D) requires that the agency "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." This provision follows and is in addition to the § 102(2) (C) requirement of a detailed statement discussing, inter alia, alternatives to the proposed action. This is not to suggest, however, that the more extensive treatment of alternatives required by § 102(2) (D) cannot be incorporated in the EIS. Indeed, "it is the essence and thrust of NEPA that the pertinent Statement serve to gather in one place a discussion of the relative environmental impact of alternatives." Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972). So too, the guidelines to the federal agencies issued by the CEQ explain the import of § 102(2) (D) under the general heading "Content of Environmental Statement." 36 Fed.Reg. 7724, 7725 (1971). The guidelines suggest:
Defendants have devoted thirty-seven pages of the 200-page impact statement to the discussion of alternatives, among them, total abandonment of the project. Particular attention is given to the suggestion that the Cossatot be preserved as a scenic river under the National Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. The economic benefits and environmental impact of each alternative are developed in great detail.
The most recent case to fully discuss § 102(2)(D) decided that the statute was subject to a construction of reasonableness. "The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation's needs are not infinite." Natural Resources Defense Council v. Morton, supra, 458 F.2d at 837.
We are reminded of the suggestion of the district court in this case that "[i]t is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies. But even such deficiencies and inadequacies, discovered after the fact, can be brought to the attention of the decision-makers, including, ultimately, the President and the Congress itself." 342 F.Supp. at 1217.
Again, we concur in the finding of the district court, implicit in its opinion, that the EIS contains the study, development and description of reasonable alternatives required by § 102(2)(D).
VI. JUDICIAL REVIEW OF SUBSTANTIVE MERITS
Finally, appellants contend that appellees' administrative determination that the dam should be constructed was arbitrary and capricious, contrary to the requirements of § 101 of NEPA, and reviewable by the courts under the Administrative Procedure Act, 5 U.S.C. § 706.
The district court found that NEPA "falls short of creating the type of `substantive rights' claimed by the plaintiffs," and therefore "plaintiffs are relegated to the `procedural' requirements of the Act." 325 F.Supp. at 755.
We disagree. The language of NEPA, as well as its legislative history, make it clear that the Act is more than an environmental full-disclosure law. NEPA was intended to effect substantive changes in decisionmaking. Section 101(b) of the Act states that agencies have an obligation "to use all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" to preserve and enhance the environment. To this end, § 101 sets out specific environmental goals to serve as a set of policies to guide agency action affecting the environment.
Section 102(1) directs that the policies, regulations and public laws of the United States be interpreted in accordance with these policies to the fullest extent possible.
The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives.
The application of the substantive principles of NEPA is to be made by the agency through a "careful and informed decisionmaking process." Calvert Cliffs' Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115. The agency must give environmental factors consideration along with economic and technical factors. "To `consider' the former `along with' the latter must involve a balancing process." Id. at 1113.
Given an agency obligation to carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits. Whether we look to common law or the Administrative Procedure Act, absent "legislative guidance as to reviewability, an administrative determination affecting legal rights is reviewable unless some special reason appears for not reviewing." K. Davis, 4 Administrative Law Treatise 18, 25 (1958).
The conclusion we reach with respect to substantive review of agency decisions is supported by the District of Columbia Circuit, the Second Circuit and the Fourth Circuit,
The standard of review to be applied here and in other similar cases is set forth in Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 824. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision itself represented a clear error in judgment.
Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether "the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values." Calvert Cliffs' Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115.
Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 824.
The trial court's opinion is in error insofar as it holds that courts are precluded from reviewing agencies' decisions to determine if they are in accord with the substantive requirements of NEPA. In light of our holding, there is no alternative but to subject the decision of the Corps to build Gillham Dam to review under the arbitrary and capricious
We therefore, affirm the judgment of the trial court for the reasons set forth in the opinion. Costs will be taxed equally to the parties.
The National Environmental Policy Act
Sec. 2. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.
DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
Sec. 101. (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in co-operation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —
(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall —
S.Rep.No.91-296, 91st Cong., 1st Sess. 9 (1969).
Mr. Henry M. Jackson, the principal Senate sponsor of NEPA, stated:
115 Cong.Rec. 29087 (1969).
In its Interim Guidelines of April 30, 1970, the CEQ stated that "[i]n essence the Section 102(2) (C) process is designed to insure that environmental considerations are given careful attention and appropriate weight in all Federal Government decision making." (Emphasis added.) In its most recent guidelines, 36 Fed.Reg. 7724, April 23, 1971, the Council stated that the objective of § 102(2) (C) is "to build into the agency decision making process an appropriate and careful consideration of the environmental aspects of proposed action." The agencies must "assess in detail the potential environmental impact in order that adverse effects are avoided, and environmental quality is restored or enhanced, to the fullest extent practicable."
In view of the foregoing matter, we conclude that a purely mechanical compliance with the procedures of § 102 is not sufficient to satisfy the provisions of NEPA.
Here, the substantive requirements of NEPA, which we have discussed above, provide law for the courts to apply in reviewing agency decisions. See generally Recent Developments, 60 Georgetown L.J. 1101 (1972); The Supreme Court, 1970 Term, 85 Harv.L.Rev. 315-326 (1971).
This position was reiterated in Natural Resources Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972). Nothing in Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir.1971), indicates a departure from the principles enunciated in Calvert Cliffs. While the question of judicial review on the merits was not at issue in Seaborg, the court's opinion at 787 indicated reliance on Calvert Cliffs for the proposition that limited review was appropriate. In light of these cases, the contrary decision of the District of Columbia District Court in Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971), carries little weight.
The Second Circuit in Scenic Hudson Preserv. Conf. v. Federal Power Com'n, 453 F.2d 463, 468-469 (2nd Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972) (Douglas, J., dissenting), reviewed the merits of a Federal Power Commission decision to determine if it was in compliance with NEPA. A reading of Judge Oakes' dissent, 453 F.2d at 482, as well as the dissent of Mr. Justice Douglas from the order denying certiorari, reveals that the only point in controversy was whether a standard of review stricter than the arbitrary or capricious test should have been used. Similarly, a three-judge court in City of New York v. United States, 344 F.Supp. 929 (E.D.N.Y.1972), made a limited review on the merits of an agency decision. The question as to whether or not a stricter standard of review should be used was left open. See also Hanly v. Mitchell, 460 F.2d 640 (2nd Cir. 1972). However, in the instant case, the appellants have argued only for the arbitrary and capricious test rather than any stricter standard of review.
The Fourth Circuit in Ely v. Velde, 451 F.2d 1130, 1138-1139 (1971), indicated that the purpose of impact studies is to create a record which can be reviewed to determine if the agency's actions were arbitrary. But subsequently, a district court of the Fourth Circuit indicated that no review on the merits is available, North Carolina Conservation Council v. Froehlke, 340 F.Supp. 222 (M.D.N.C. 1972), and that decision was affirmed by the Fourth Circuit in a brief per curiam opinion. North Carolina Conservation Council v. Froehlke, No. 72-1276 (4th Cir., May 2, 1972). Thus, the position of the Fourth Circuit on this issue is not completely clear.
The Tenth Circuit, however, has held that no review on the merits is available. National Helium Corporation v. Morton, 455 F.2d 650 (1971). See Bradford Township v. Illinois State Toll Highway Authority, 463 F.2d 537 (7th Cir. 1972).
District court decisions supporting a limited review on the merits are Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash., 1972); Brooks v. Volpe, 350 F.Supp. 269 (W.D.Wash., 1972); Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 789 (D.Maine 1972); Morningside-Lenox Park Assn. v. Volpe, 334 F.Supp. 132, 145 (N.D.Ga.1971). While the court in Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916 (N.D. Miss.1972), indicated its belief that review on the merits was inappropriate, it actually reviewed the conclusions of the Corps of Engineers in a careful and systematic manner.
Environmental Quality 253-254 (August, 1972).
For the reasons stated by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 28 L.Ed. 136 (1971), we do not believe that the substantial evidence test is applicable here.