Columbia Basin Land Protection Ass'n v. Kleppe

• Decision Date: 29 March 1976
• Docket Number: No. C-76-6.,C-76-6.
• Citation: 417 F. Supp. 46
• Parties: COLUMBIA BASIN LAND PROTECTION ASSOCIATION, an unincorporated association, et al., Plaintiffs, v. Thomas S. KLEPPE, Secretary of Interior, and Donald Paul Hodel, Administrator, Bonneville Power Administration, Defendants.
• Court: U.S. District Court — District of Washington

417 F. Supp. 46

COLUMBIA BASIN LAND PROTECTION ASSOCIATION, an unincorporated association, et al., Plaintiffs, v. Thomas S. KLEPPE, Secretary of Interior, and Donald Paul Hodel, Administrator, Bonneville Power Administration, Defendants.

No. C-76-6.

United States District Court, E. D. Washington.

March 29, 1976.

COPYRIGHT MATERIAL OMITTED

Stephen P. Ryder and Richard W. Pierson, of Thom, Mussehl, Navoni, Hoff, Pierson & Ryder, Seattle, Wash., for plaintiffs.

Dean C. Smith, U. S. Atty., Robert M. Sweeney, Asst. U. S. Atty., Spokane, Wash., for defendants.

MEMORANDUM AND ORDER

NEILL, Chief Judge.

Bonneville Power Administration (BPA) has filed an environmental impact statement (EIS) covering a proposed program to construct a series of power transmission lines extending from Little Goose and Lower Granite dams on the Lower Snake River to the Mid-Willamette Valley area of Oregon. As part of this energy redistribution program BPA has proposed a 500-kilowatt transmission line which will connect Lower Monumental Dam with a substation at Ashe, near Richland, Washington. BPA intends to construct this line along proposed route "D", which traverses dry and irrigated farmland owned by members of the plaintiff Columbia Basin Land Protection Association, an organization formed for the purpose of seeking an alternate route for the power line.

Having failed to persuade BPA to utilize their proposed route "E", which traverses a longer route across dry rangeland, plaintiffs seek injunctive and declaratory relief, based on the National Environmental Protection Act (NEPA), declaring BPA's impact statement inadequate and its decision to utilize route "D" arbitrary and capricious and an abuse of discretion.

Presently before the Court is plaintiffs' motion for a preliminary injunction.

The factors a Court must consider on a motion for preliminary injunction are:

(1) the significance of the threat of irreparable harm to plaintiff if the injunction is not granted;

(2) the state of the balance between this harm and the injury that granting the injunction could inflict on the defendant;

(3) the probability that plaintiff will succeed on the merits; and

(4) the public interest.

11 Wright and Miller, Federal Practice and Procedure, § 2948 at 430-431. In the case at bench, however, the decisive factor is plaintiffs' likelihood of success on the merits. It is clear that plaintiffs will suffer irreparable harm if the project is permitted to proceed and later found to be in violation of NEPA, for testimony at the hearing established that construction is already behind schedule and will proceed swiftly unless enjoined.¹ Further, NEPA has effectively preempted this Court's authority to balance the relative harm to the parties that would result from an injunction or to determine the public interest, for the act

sets forth a declaration of national environmental policy and requires the Federal Government to use "all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" to achieve a wide range of environmental goals. Sec. 101, 42 U.S.C.A. § 4331.

Trout Unlimited v. Morton, 509 F.2d 1276, 1281 (9th Cir. 1974). See also, 42 U.S.C. § 4321, Daly v. Volpe, 376 F.Supp. 987, 992-993 (W.D.Wa.1974). Since NEPA mandates implementation of a congressionally defined policy "to the fullest extent possible", 42 U.S.C. § 4332, the relative harm to the parties that results from an injunction in furtherance of the goals of NEPA is not controlling. Cf. United States v. San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940), quoted in Lathan v. Volpe, 455 F.2d 1111, 1116 (9th Cir. 1971) and Northside Tenants' Rights Coalition v. Volpe, 346 F.Supp. 244, 248-249 (E.D.Wis.1972). Accordingly, courts have not hesitated to enjoin projects proceeding in violation of NEPA, irrespective of the damage caused by such injunctions. Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App. D.C. 33, 449 F.2d 1109, 1115 (1971); Lathan v. Volpe, supra; Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 422-423 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Arlington Coalition v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 243 (1972); Lathan v. Volpe, 350 F.Supp. 262, 265 (W.D.Wash. 1972). Therefore, the Court's grant or denial of plaintiffs' motion for a preliminary injunction depends on the probability that plaintiffs will succeed on the merits.

The Basis of Plaintiffs' Attack

Plaintiffs assert that BPA's choice of route "D" was arbitrary and capricious, constitutes an abuse of discretion, and was violative of procedure required by law. See 5 U.S.C. § 706(2)(A) and (D). Plaintiffs' attack is founded on defendants' alleged non-compliance with NEPA, 42 U.S.C. § 4321 et seq. Specifically, they assert that the EIS prepared for the project failed to comply with NEPA in the following particulars:

(1) that the EIS failed to incorporate a cost-benefit analysis comparing the alternatives to the route chosen, as required by 42 U.S.C. 4332(2)(B) and Guideline 1500.8(a)(4) of the Council on Environmental Quality (CEQ), Part 1500, Chapter 5, Title 40, "Protection of the Environment";

(2) that defendants failed to review and revise their procedures for preparation of EISs in consultation with CEQ as required by CEQ Guideline 1500.3(a);

(3) that defendants failed to fulfill their statutory duties under the National Historic Preservation Act of 1966, 16 U.S.C. 470f et seq., and Executive Order 11593;

(4) that defendants failed to correlate the project and its alternatives to BPA's larger projects as required by CEQ Guideline 1500.6(d)(1);

(5) that defendants failed to adequately consult with other federal agencies and give sufficient consideration to their comments as required by 42 U.S.C. 4332(2)(C) and CEQ Guideline 1500.8;

(6) that defendants omitted material facts from the EIS concerning future additions to the proposed power line and costs of construction.

At the outset it is necessary to define the appropriate standard of review for the Court to apply in evaluating BPA's EIS. Although there has been some confusion as to whether EISs are reviewable under the "arbitrary and capricious" standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), or under the "without observance of procedure required by law" standard of that act, 5 U.S.C. § 706(2)(D), Trout Unlimited v. Morton, supra at 1282, the Ninth Circuit has held that § 706(2)(D) is the proper standard for review of the adequacy of an EIS. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974), quoted in Trout Unlimited, supra at 1282. The question remains open whether the Court could reverse a substantive agency decision if, after reviewing the EIS and finding it adequate, the Court then concluded that the agency decision was "arbitrary, capricious and an abuse of discretion" in light of the information contained in the EIS. Calvert Cliffs' Coord. Com., supra at 1115; Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973). However, the Court need not answer this question because BPA's decision, though understandably unpopular with plaintiffs, was clearly based on legitimate economic considerations reflected in the EIS, and was not arbitrary and capricious. Hence, plaintiffs' prayer that the Court reverse defendants' decision as an abuse of discretion must be denied.

However, the Court must examine the EIS from a purely procedural perspective to determine whether defendants complied with the procedures of NEPA in preparing the EIS for the power line project. If the EIS was not prepared in compliance with NEPA the Court must require defendants to prepare an adequate EIS before they can proceed with the project, Brooks v. Volpe, 350 F.Supp. 269, 276 (W.D.Wa.1972), but if the EIS is procedurally sound plaintiffs are without a remedy, for the Court cannot substitute its judgment for that of the agency decision-maker. Trout Unlimited v. Morton, supra at 1283.

After considering the evidence presented at the hearing on the motion for preliminary injunction and carefully reviewing the EIS and other matters contained in the record, the Court is constrained to conclude there is a high probability it would find the EIS procedurally sound at the hearing on the merits. A seriatim discussion of plaintiffs' contentions follows.

I. Cost-Benefit Analysis

NEPA requires that agencies

identify and develop methods and procedures, in consultation with the Council on Environmental Quality . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; . . .

42 U.S.C. § 4332(2)(B). This provision has been construed to require "a rather finely tuned and `systematic' balancing analysis . . . ", Calvert Cliffs' Coord. Com., supra at 1113, in order to provide

a basis for (a) evaluation of the benefits of the proposed project in light of its environmental risks, and (b) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action.

Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 833 (1972). Based on the foregoing and on the testimony of plaintiffs' expert witness, plaintiffs urge that nothing less than an intricate, computerized system of analysis is required by NEPA and that, lacking this, the EIS is deficient.

However, the most recent holding of the Ninth Circuit regarding the necessity of a cost-benefit analysis is not as stringent in its requirement that costs and benefits of each alternative be analyzed and compared:

. . . there are no specific statutory requirements which would mandate the inclusion of a cost-benefit formula in the

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