Foundation on Economic Trends v. Lyng, 86-5452

• Citation: 817 F.2d 882
• Decision Date: 01 May 1987
• Docket Number: No. 86-5452,86-5452
• Parties: , 260 U.S.App.D.C. 159, 17 Envtl. L. Rep. 20,902 FOUNDATION ON ECONOMIC TRENDS, et al., Appellants, v. Richard LYNG, Secretary of Agriculture, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 882

817 F.2d 882

25 ERC 1945, 260 U.S.App.D.C. 159, 17

Envtl. L. Rep. 20,902

FOUNDATION ON ECONOMIC TRENDS, et al., Appellants, v. Richard LYNG, Secretary of Agriculture, et al.

No. 86-5452.

United States Court of Appeals, District of Columbia Circuit.

Argued March 3, 1987.

Decided May 1, 1987.

Edward Lee Rogers, New York City, for appellants.

Elizabeth Ann Peterson, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Martin W. Matzen and J. Carol Williams, Attys., Dept. of Justice, Washington, D.C. were on the brief, for appellees.

Before MIKVA, STARR and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This appeal brings before us the question of whether the United States Department of Agriculture (USDA or Department) is required to prepare a programmatic environmental impact statement (EIS) in connection with the Department's animal productivity research. Concluding that an EIS was not required, the District Court granted the Department's motion for summary judgment. We affirm.

Congress has authorized and directed the Secretary of Agriculture "to conduct and to stimulate research into the laws and principles underlying the basic problems of agriculture in its broadest aspects." 7 U.S.C. Sec. 427 (1982). Expressly included in this broad mandate is the authority to research new and improved methods of animal breeding and production. Id. To fulfill its statutory obligation, USDA employs scientists to conduct inhouse research and provides grant funds for research at eligible institutions.

a. The Agricultural Research Service (ARS) is USDA's major in-house research arm. One of ARS's six main research areas ¹ is animal productivity research, which constitutes approximately 20 percent of ARS's budget. This productivity research is directed to six different areas: Genetics and Breeding; Reproduction; Nutrition; Disease; Insects, Ticks and Mites; and Systems. ² Within each of those six categories, ARS conducts a wide range of projects. To illustrate the variety of these projects, a five-percent representative sample of the single category of Genetics and Breeding includes research into: (1) use of embryo transfer to determine maternal effects and produce multiple births in beef cattle; (2) improving lamb production through integrated reproduction management; and (3) inheritance of endogenous viral genes and their effect on the occurrence of tumorous growths in poultry. Supplemental J.A. at 55-60. The breadth of this work is explained in part by the different needs of USDA and other regulatory agencies, ³ requests from national commodity and user groups, and directives from Congress, all of which influence ARS's research priorities.

b. In addition to its in-house research, USDA administers grants for agricultural research, largely through the Cooperative State Research Service (CSRS). CSRS funding provides only partial support (20 percent of a project's total cost on a national average). Institutional grantees, typically land-grant colleges and universities across the Nation, determine the type and scope of the research conducted. CSRS requires only that the research be agricultural in nature.

c. To transmit findings from these research programs to the scientific community and the interested public, USDA engages in extensive information dissemination activities. Through such publicity efforts, USDA helps ensure that new technologies will be implemented in practical settings.

Appellants, a variety of individuals and public interest groups, ⁴ brought this action in United States District Court, claiming that USDA violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321, et seq. (1982), by failing to prepare an EIS on its animal productivity research. The complaint was broad in sweep; indeed, the precise contours of appellants' challenge were highly difficult for the District Court to discern. Having reviewed the record, we understand full well the District Court's expressed uncertainty as to appellants' exact claims, notwithstanding the court's assiduous efforts to clarify and sharpen the issues.

By virtue of the gradual refinement of their claims, it is now apparent that appellants object neither to selective breeding technologies per se, nor to specific, path-breaking research projects, such as implantation of growth hormone genes in animals or the use of recombinant DNA techniques to study growth and reproduction. Instead, appellants argue that USDA's decision to focus its animal productivity research on developing faster growing, more productive, and larger animals requires an analysis of the resulting environmental impacts. ⁵ They contend that an EIS is necessary to "evaluate the statutory goals--national priorities and policies--that should have been considered in the development of the USDA research program." J.A. at E-15.

NEPA's requirements are well known and thus little needs be said to describe the general compass of the Act. See, e.g., Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C.Cir.1971); Scientists Institute for Public Information v. AEC, 481 F.2d 1079 (D.C.Cir.1973). In brief, NEPA requires federal agencies to prepare an EIS on "proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C).

The Council on Environmental Quality (CEQ) has developed guidelines for determining whether concerted agency activities qualify as a "major Federal action" requiring a single, comprehensive impact statement, known in NEPA terminology as a programmatic EIS. ⁶ Under the guidelines, the "[a]doption of programs, such as a group of concerted actions to implement a specific policy" constitutes "Federal action," as does "systematic and connected agency decisions allocating agency resources to implement a specific statutory program." 40 C.F.R. Sec. 1508.18(b)(3) (1986). The guidelines also address when an agency must prepare a programmatic EIS, analyzing the cumulative impact of agency activities. A programmatic EIS is necessary, the guidelines state, where the proposals for federal action "are related to each other closely enough to be, in effect, a single course of action." Id. Sec. 1502.4(a). Later passages in the guidelines, defining the scope of an EIS, shed further light on the idea of a close relation. "Connected actions" are "closely related," and thus to be treated in one statement, "if they: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification." Id. Sec. 1508.25(a)(1).

Appellants' theory under NEPA is one of aggregation. Renouncing any interest in challenging a particular aspect of research, appellants instead maintain that ARS's animal productivity research program as a whole requires a programmatic EIS. USDA argues, however, that its animal productivity research consists of projects too diverse and discrete to constitute either a "major Federal action" or activities sufficiently "systematic and connected" to require a programmatic EIS. We agree. As we noted previously, USDA's animal productivity research spans a variety of distinct subject areas ranging from the study of the reproductive processes to the control of insects. See supra text at note 2. As we likewise sought to adumbrate, research efforts take many different directions within each of the six broad categories. See supra text at 882-883.

Not only are the research projects diverse, they are discrete and independent in nature. They are separately operated. Approval of one project does not insure approval of technologically similar projects. Success in one project area does not invariably affect the variety or direction of USDA research, inasmuch as USDA's research program is largely reactive, designed as we indicated before to respond to the needs of USDA, other regulatory agencies, user groups, and consumers.

Appellants nonetheless contend that USDA's animal productivity research constitutes a "major Federal action" under NEPA because the research is directed toward a single policy objective, namely productive efficiency. In support of their position, appellants point to the CEQ definition, which as we saw above includes implementation of a specific policy or specific statutory program. 40 C.F.R. Sec. 1508.18(b)(3). It is clear, and indeed uncontested, that a specific "policy" underlies USDA research. The CEQ guidelines, however, require more: the agency's actions or decisions must be "concerted" or "systematic and connected." Appellants have in no way elucidated, and we fail to discern, how USDA's vast array of animal productivity research projects are interrelated or interdependent, other than sharing a common goal. But mere commonality of objective is insufficient under the guidelines to constitute a "major Federal action," which is a sine qua non of NEPA's applicability (in addition to the requirement of "significantly affecting" the environment). ⁷

It...