Section 102 (2) (C) of the National Environmental Policy Act of 1969
Respondents, several organizations concerned with the environment, brought this suit in July 1973 in the United States District Court for the District of Columbia.
The District Court, on the basis of extensive findings of fact and conclusions of law, held that the complaint stated no claim for relief and granted the petitioners' motions for summary judgment.
The federal officials petitioned for writ of certiorari on October 9, 1975. On November 7, the Court of Appeals refused to dissolve its injunction,
The record and the opinions of the courts below contain extensive facts about coal development and the geographic area involved in this suit. The facts that we consider essential, however, can be stated briefly.
The Northern Great Plains region identified in respondents' complaint encompasses portions of four States—northeastern Wyoming, eastern Montana, western North Dakota, and western South Dakota. There is no dispute about its richness in coal, nor about the waxing interest in developing that coal, nor about the crucial role the federal petitioners will play due to the significant percentage of the coal to which they control access. The Department has initiated, in this decade, three studies in areas either inclusive of or included within this
While the record does not reveal the degree of concern with environmental matters in the first two studies, it is clear that the NGPRP was devoted entirely to the environment. It was carried out by an interagency, federal-state task force with public participation, and was designed "to assess the potential social, economic and environmental impacts" from resource development in five States—Montana, Wyoming, South Dakota, North Dakota, and Nebraska.
In addition, since 1973 the Department has engaged in a complete review of its coal-leasing program for the entire Nation. On February 17 of that year the Secretary announced the review and announced also that during study a "short-term leasing policy" would prevail,
Against this factual background, we turn now to consider the issues raised by this case in the status in which it reached this Court.
The major issue remains the one with which the suit began: whether NEPA requires petitioners to prepare an environmental impact statement on the entire Northern Great Plains region.
As noted in the first sentence of this opinion, § 102 (2) (C) requires an impact statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." Since no one has suggested that petitioners have proposed legislation on respondents' region, the controlling phrase in this section of the Act, for this case, is "major Federal actions." Respondents can prevail only if there has been a report or recommendation on a proposal for major federal action with respect to the Northern Great Plains region. Our statement of the relevant facts shows there has been none; instead, all proposals are for actions of either local or national scope.
The local actions are the decisions by the various petitioners to issue a lease, approve a mining plan, issue a right-of-way permit, or take other action to allow private activity at some point within the region identified by respondents. Several Courts of Appeals have held that an impact statement must be included in the report or recommendation on a proposal for such action if the private activity to be permitted is one "significantly affecting the quality of the human environment" within the meaning of § 102 (2) (C). See, e. g., Scientists' Institute for Public Information, Inc. v. AEC, 156 U. S. App. D. C. 395, 404-405, 481 F.2d 1079, 1088-1089 (1973); Davis v. Morton, 469 F.2d 593 (CA10 1972).
But there is no evidence in the record of an action or a proposal for an action of regional scope. The District Court, in fact, expressly found that there was no existing or proposed plan or program on the part of the Federal Government for the regional development of the area described in respondents' complaint. It found also that the three studies initiated by the Department in areas either included within or inclusive of respondents' region—that is, the Montana-Wyoming Aqueducts Study, the North Central Power Study, and the
Quite apart from the fact that the statutory language requires an impact statement only in the event of a proposed action,
The Court of Appeals, in reversing the District Court, did not find that there was a regional plan or program for development of the Northern Great Plains region. It accepted all of the District Court's findings of fact, but concluded nevertheless that the petitioners "contemplated" a regional plan or program. The court thought that the North Central Power Study, the Montana-Wyoming Aqueducts Study, and the NGPRP all constituted "attempts to control development" by individual companies on a regional scale. It also concluded that the interim report of the NGPRP, then expected to be released at any time, would provide the petitioners with the information needed to formulate the regional plan they had been "contemplating." The Court therefore remanded with instructions to the petitioners to inform the District Court of their role in the further development of the region within 30 days after the NGPRP interim report issued; if they decided to control that development, an impact statement would be required.
We conclude that the Court of Appeals erred in both its factual assumptions and its interpretation of NEPA. We think the court was mistaken in concluding, on the record before it, that the petitioners were "contemplating" a regional development plan or program. It considered the several studies undertaken by the petitioners to represent attempts to control development on a regional scale. This conclusion was based on a finding by the District Court that those studies, as well as the new national coal-leasing policy, were "attempts to control development by individual companies in a manner consistent with the policies and procedures of the National
Moreover, at the time the Court of Appeals ruled there was no indication in the record that the NGPRP was aimed toward a regional plan or program, and subsequent events have shown that this was not its purpose. The interim report of the study, issued shortly after the Court of Appeals ruled, described the effects of several possible rates of coal development but stated in its preface that the alternatives "are for study and comparison only; they do not represent specific plans or proposals." All parties agreed in this Court that there still exists no proposal for a regional plan or program of development. See Tr. of Oral Arg. 48.
Even had the record justified a finding that a regional program was contemplated by the petitioners, the legal conclusion drawn by the Court of Appeals cannot be squared with the Act. The court recognized that the mere "contemplation" of certain action is not sufficient to require an impact statement. But it believed the statute nevertheless empowers a court to require the preparation of an impact statement to begin at some point prior to the formal recommendation or report on a proposal. The Court of Appeals accordingly devised its own four-part "balancing" test for determining when, during the contemplation of a plan or
The Court of Appeals thought that as to two of these factors—the availability of information on the effects of any regional development program, and the severity of those effects—the time already was "ripe" for an impact statement. It deemed the record unclear, however, as to the likelihood of the petitioners' actually producing a plan to control the development, and surmised that irretrievable commitments were being avoided because petitioners had ceased approving most coal-related projects while the NGPRP study was underway. The court also thought that the imminent release of the NGPRP interim report would provide the officials with sufficient information to define their role in development of the region, and it believed that as soon as the NGPRP was completed the petitioners would begin approving individual projects in the region, thus permitting irrevocable commitments of resources. It was for this reason that the court in its remand required the petitioners to report to the District Court their decision on the federal role with respect to the Northern Great Plains as a region within 30 days after issuance of the NGPRP report.
The Court's reasoning and action find no support in the language or legislative history of NEPA. The statute clearly states when an impact statement is required, and mentions nothing about a balancing of factors. Rather, as we noted last Term, under the first
Assuming that the Court of Appeals' theory about "contemplation" of regional action would permit a court to require preproposal preparation of an impact statement, the court's injunction against the Secretary's approval of the four mining plans in the Powder River Basin nevertheless would have been error. The District Court had found that respondents would not have been entitled to an injunction against any individual projects even if their claim of the need for a regional impact statement had been valid, because they had shown no irreparable harm that would result absent such an injunction and the record disclosed that irreparable harm would result to the intervenors who sought to carry out their business ventures and to the public who depended upon their operations. The Court of Appeals made no finding as to the equities at the time it originally entered the injunction; when it continued the injunction following its decision on the merits, it stated only that the "harm" justifying an injunction "matured" whenever an impact statement is due and not filed. But on the Court of Appeals' own terms there was in fact no harm. First, the Court of Appeals itself held that no regional impact statement was due at that moment, and it was uncertain whether one ever would be due. Second, there had been filed a comprehensive impact statement on the proposed Powder River Basin mining plans themselves, and its adequacy had not been challenged either before the District Court or the Court of Appeals in this case, or anywhere else.
Our discussion thus far has been addressed primarily to the decision of the Court of Appeals. It remains, however, to consider the contention now urged by respondents. They have not attempted to support the Court of Appeals' decision. Instead, respondents renew an argument they appear to have made to the Court of Appeals, but which that court did not reach. Respondents insist that, even without a comprehensive federal plan for the development of the Northern Great Plains, a "regional" impact statement nevertheless is required on all coal-related projects in the region because they are intimately related.
There are two ways to view this contention. First, it amounts to an attack on the sufficiency of the impact statements already prepared by the petitioners on the coal-related projects that they have approved or stand ready to approve. As such, we cannot consider it in this proceeding, for the case was not brought as a challenge to a particular impact statement and there is no impact statement in the record.
We begin by stating our general agreement with respondents' basic premise that § 102 (2) (C) may require a comprehensive impact statement in certain situations where several proposed actions are pending at the same time. NEPA announced a national policy of environmental protection and placed a responsibility upon the Federal Government to further specific environmental goals by "all practicable means, consistent with other essential considerations of national policy." § 101 (b), 42 U. S. C. § 4331 (b). Section 102 (2) (C) is one of the "action-forcing" provisions intended as a directive to "all agencies to assure consideration of the environmental impact of their actions in decisionmaking." Conference Report on NEPA, 115 Cong. Rec. 40416 (1969).
Agreement to this extent with respondents' premise, however, does not require acceptance of their conclusion that all proposed coal-related actions in the Northern Great Plains region are so "related" as to require their analysis in a single comprehensive impact statement. Respondents informed us that the Secretary recently adopted an approach to impact statements on coal-related actions that provides:
At another point, the document containing the Secretary's approach
Respondents conceded at oral argument that to prevail they must show that petitioners have acted arbitrarily in refusing to prepare one comprehensive statement on this entire region, and we agree. Tr. of Oral Arg. 67. The determination of the region, if any, with respect to which a comprehensive statement is necessary requires the weighing of a number of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibility. Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies. Cf. SCRAP II, 422 U. S., at 325-326. Absent a showing of arbitrary action, we must assume that the agencies have exercised this discretion appropriately. Respondents have made no showing to the contrary.
Respondents' basic argument is that one comprehensive statement on the Northern Great Plains is required because all coal-related activity in that region is "programmatically," "geographically," and "environmentally" related. Both the alleged "programmatic" relationship and the alleged "geographic" relationship resolve, ultimately, into an argument that the region is proper for a comprehensive impact statement because the petitioners themselves have approached environmental study in this area on a regional basis.
As for the alleged "environmental" relationship, respondents contend that the coal-related projects "will produce a wide variety of cumulative environmental impacts" throughout the Northern Great Plains region. They described them as follows: Diminished availability of water, air and water pollution, increases in population and industrial densities, and perhaps even climatic changes. Cumulative environmental impacts are, indeed, what require a comprehensive impact statement.
In sum, respondents' contention as to the relationships between all proposed coal-related projects in the Northern Great Plains region does not require that petitioners prepare one comprehensive impact statement covering all before proceeding to approve specific pending applications.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part.
While I agree with much of the Court's opinion, I must dissent from Part IV, which holds that the federal courts may not remedy violations of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq.—no matter how blatant—until it is too late for an adequate remedy to be formulated. As the Court today recognizes, NEPA contemplates agency consideration of environmental factors throughout the decisionmaking process. Since NEPA's enactment, however, litigation has been brought primarily at the end of that process—challenging agency decisions to act made without adequate environmental impact statements or without any statements at all. In such situations, the courts have had to content themselves with the largely unsatisfactory remedy of enjoining the proposed federal action and ordering the preparation of an adequate impact statement. This remedy is insufficient because, except by deterrence, it does nothing to further early consideration of environmental factors. And, as
Nonetheless, until this lawsuit, such belated remedies were all the federal courts had had the opportunity to impose under NEPA. In this case, confronted with a situation in which, according to respondents' allegations, federal agencies were violating NEPA prior to their basic decision to act, the Court of Appeals for the District of Columbia Circuit seized the opportunity to devise a different and effective remedy. It recognized a narrow class of cases—essentially those where both the likelihood of eventual agency action and the danger posed by nonpreparation of an environmental impact statement were great—in which it would allow judicial intervention prior to the time at which an impact statement must be ready. The Court today loses sight of the inadequacy of other remedies and the narrowness of the category constructed by the Court of Appeals, and construes NEPA so as to preclude a court from ever intervening prior to a formal agency proposal. This decision, which unnecessarily limits the ability of the federal courts to effectuate the intent of NEPA, is mandated neither by the statute nor by the various equitable considerations upon which the Court relies.
The premises of the Court of Appeals' approach are not novel and indeed are reaffirmed by the Court today.
But an early start on the statement is more than a procedural necessity. Early consideration of environmental consequences through production of an environmental impact statement is the whole point of NEPA, as the Court recognizes. The legislative history of NEPA demonstrates that "[b]y requiring an impact statement Congress intended to assure [environmental] consideration during the development of a proposal . . . ." Ante, at 409 (emphasis added). Compliance with this duty allows the decisionmaker to take environmental
Because an early start in preparing an impact statement is necessary if an agency is to comply with NEPA, there comes a time when an agency that fails to begin preparation of a statement on a contemplated project is violating the law. It is this fact, which is not disputed by the Court today, that was recognized by the Court of Appeals and that formed the basis of its remedy. The Court devised a four-part test to enable a reviewing court to determine when judicial intervention might be proper in such cases. The questions formulated by the Court of Appeals were:
While the Court's disapproval of this four-part inquiry precludes any future demonstration of its workability, the test is designed to allow judicial intervention only in the small number of cases where the need for work to begin on an environmental impact statement is clear
I believe the Court of Appeals' test is a sensible way to approach enforcement of NEPA, and none of the Court's reasons for concluding otherwise are, for me, persuasive.
The Court begins its rejection of the four-part test by announcing that the procedural duty imposed on the agencies by § 102 (2) (C) is "quite precise" and leaves a court "no authority to depart from the statutory language. . . ." Ante, at 406. Given the history and wording of NEPA's impact statement requirement, this statement is baffling. A statute that imposes a complicated procedural requirement on all "proposals" for "major Federal actions significantly affecting the quality of the human environment" and then assiduously avoids giving any hint, either expressly or by way of legislative history, of what is meant by a "proposal" or by a "major Federal
But, claims the Court, judicial intervention of the sort approved by the Court of Appeals would leave the agencies uncertain about their procedural duties under NEPA. There is no basis for this claim. The agencies already know their duties under NEPA and the Court of Appeals did not alter them. All it did was create a mechanism to allow it to enforce those pre-existing duties.
Next, the Court fears, the four-part test would "invite judicial involvement in the day-to-day decisionmaking process of the agencies . . . ." Ante, at 406. This concern is in part untrue and in part exaggerated. The test would certainly result in judicial involvement with the single decision whether the time is right to begin an impact statement. But this is hardly a day-to-day process, and the involvement even in that decision would be limited to timing alone. The Court of Appeals made clear that, so long as their decision was not arbitrary or capricious, "definition of the proper region for comprehensive development and, therefore, the comprehensive impact statement should be left in the hands of the federal appellees," 169 U. S. App. D. C., at 45 n. 33, 514 F. 2d, at 881 n. 33, a position which the Court adopts today. Ante, at 412. And, most important, a federal
The Court is also concerned that the proposed rule would invite litigation. But the recognition of any right invites litigation, and it is a curious notion of statutory construction that makes substantive rights depend on whether persons would seek to enforce them in court. See United States v. Watson, 423 U.S. 411, 433, 452 n. 19 (1976) (MARSHALL, J., dissenting). In any case, to the extent the litigation is the result of agency noncompliance with NEPA, the Court can hardly complain about it. And to the extent the litigation is frivolous, the four-part test is a stiff one and "the plaintiff can be hastened from [the] court by summary judgment." Barlow v. Collins, 397 U.S. 159, 175 n. 10 (1970) (opinion of BRENNAN, J.).
Lastly, the Court complains, since some contemplated projects might never come to fruition, the Court of Appeals' test might result "in the preparation of a good many unnecessary impact statements." Ante, at 406 (footnote omitted). Even bypassing the instances in which a project is dropped as a result of environmental considerations discovered in the course of preparing an impact statement, the Court's concerns are exaggerated. The Court of Appeals showed great sensitivity to the need for federal officials to be able "to dream out loud without filing an impact statement," 169 U. S. App. D. C., at 43, 514 F. 2d, at 879, and did not seek to disturb that freedom. Indeed, a major point of the four-part test is to avoid wasted effort—including the wasted effort of enjoining an already proposed project to allow the belated preparation of an impact statement—and the Court suggests, and I can imagine, no reason why the test is unlikely to be successful in achieving that goal.
George W. Pring filed a brief for the Environmental Defense Fund, Inc., et al. as amici curiae urging affirmance in both cases.
"(i) the environmental impact of the proposed action,
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
"(iii) alternatives to the proposed action,
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." (Emphasis added.)
Respondents contend that this document represents a significant shift in Department policy since the start of this litigation, but we disagree. Early in the litigation the Department and three other agencies prepared the comprehensive impact statement on proposed actions in the Powder River Coal Basin, see supra, at 395; its preface —quoted by the District Court—states that it evaluated "the collective impact of the proposed actions and, insofar as now possible, the impacts of potential future coal mining within the geographic area." Moreover, the Secretary's consistent position, in affidavits dating back to the District Court, has been that statements might be prepared on regions or "subregions" once the Coal Programmatic EIS was completed. While the affidavits did not, until the application for a stay of the injunction, expressly predicate preparation of such statements upon the pendency of several proposals within the region or subregion, neither are they inconsistent with such predication.
Moreover, petitioners state in their reply brief that few active or proposed mines in respondents' region are located within 50 miles of any other mine, and there are only 30 active or proposed mines in the entire 90,000 square miles of the region.
This language is not contrary to the Court of Appeals' position here for two reasons. First, the quoted language recognizes that an impact statement could be begun when the developer's plans were largely worked out, essentially the situation the four-part test would identify as appropriate for initiation of work on an impact statement. Second, and more important, Flint Ridge concerned federal approval of private action rather than federal initiation of its own project, at issue here. This distinction has been recognized before, Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320 (1975), and is recognized by the Court today. When the federal agency is initiating its own proposal, NEPA is more demanding. In such circumstances, NEPA is "intended to assure [environmental] consideration during the development of [the] proposal," whereas when private action is to be approved, NEPA seeks only to assure such consideration "during the formulation of a position on [the] proposal submitted by private parties." Ante, at 409 (footnote omitted).
Nor are other parts of the Court's opinion today inconsistent with the Court of Appeals' approach. While it is true in general, as the Court observes, that in the absence of a proposal there is nothing for an impact statement to analyze, ante, at 401-402, the observation is a generalization plainly inapplicable to situations identified by the four-part test.
Thus, the Court's conclusion that "the Court of Appeals erred in . . . its factual assumptions," ante, at 403, either misapprehends the factual assumptions necessary to the Court of Appeals' theory or is entirely without support in the record.