Friends of the Earth v. Coleman, 74-2755

• Decision Date: 10 March 1975
• Docket Number: No. 74-2755,74-2755
• Citation: 513 F.2d 295
• Parties: , 5 Envtl. L. Rep. 20,259 FRIENDS OF THE EARTH et al., Plaintiffs-Appellants, v. William T. COLEMAN, Jr., Secretary U. S. Department of Transportation, Individually and in his official capacity, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 295

513 F.2d 295

7 ERC 1827, 5 Envtl. L. Rep. 20,259

FRIENDS OF THE EARTH et al., Plaintiffs-Appellants, v. William T. COLEMAN, Jr., Secretary U. S. Department of Transportation, Individually and in his official capacity, et al., Defendants-Appellees.

No. 74-2755.

United States Court of Appeals Ninth Circuit.

March 10, 1975.

Thomas Zuckerman (argued), Stockton, Cal., for plaintiffs-appellants.

Elias D. Bardin, Asst. Chief Counsel (argued), Sacramento, Cal., for defendants-appellees.

OPINION

Before CHAMBERS and WRIGHT, Circuit Judges, and THOMPSON, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Appellants are conservationists who sought in the district court injunctive and declaratory relief against the federal defendants for an alleged failure to comply with the requirements of the National Environmental Policy Act of 1969 (NEPA) ¹ with reference to environmental impact statements. The project with which the appellants were concerned was the construction of a segment of Interstate Highway 5 (I-5) between Sacramento and Stockton, California. The state intervened through its Department of Transportation.

The district court found no genuine issues of material fact, held that the statement submitted for the project was sufficient as a matter of law, and granted summary judgment of dismissal. We affirm.

Appellants are two environmental organizations whose members regularly use the affected areas, and several individual users. Their challenge was directed not so much to the actual construction of the I-5 segment, as to appellees' decision to obtain fill for the project from the site of a Peripheral Canal, proposed as part of the California Water Project to transfer water from the upper Sacramento Valley to southern California.

Invitations for bids on the highway project from the California Division of Highways included specifications designed to implement the decision to coordinate excavation work on the two projects. By agreement with the State's Department of Water Resources, the Division required that the fill needed for the highway project be obtained from the canal site. The specifications also provided that any excavation to obtain the fill conform to the approximate design dimensions and shape of the canal.

Appellants contend that the environmental impact statement (EIS) submitted for the highway project was inadequate because it failed to consider all reasonable alternative borrow sites for the fill. They also argue that the proposed excavations will constitute a commencement of the canal project sufficiently significant to warrant formal NEPA evaluation of the canal's environmental impact. Such an evaluation, they contend, must be made prior to any further construction work on the I-5 segment, either as part of a revised statement for the highway project, or as a separate statement dealing with the canal project alone. ²

I. CONSIDERATION OF ALTERNATIVE FILL SOURCE SITES.

This court has construed NEPA § 102(2)(C) as not requiring an agency to examine every conceivable alternative, but only those that are reasonable. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973). It follows that an agency must consider those alternatives which are reasonable.

Appellants argue that the final EIS for the highway project failed to consider at least three reasonable alternative sites for obtaining the needed fill. In support of this contention, they refer to correspondence in the record indicating that state highway officials were aware of these alternatives, but concluded that they were not viable ones. That determination, appellants note, was sharply disputed in their own affidavits, which declared that "(r) easonable and viable alternatives to the proposed excavation exist." They assert that, at the very least, these contentions raised genuine issues of material fact as to the reasonableness of the alternative sites, and that the summary dismissal of their action was therefore improper.

Fed.R.Civ.P. 56(e) provides that

"when a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial."

The showing of a "genuine issue for trial" is predicated upon "the existence of a legal theory which remains viable under the asserted version of the facts, and which would entitle the party opposing the motion (assuming his version to be true) to a judgment as a matter of law." McGuire v. Columbia Broadcasting System, Inc., 399 F.2d 902, 905 (9th Cir. 1968). Hence we must determine whether there is "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

The district court concluded that appellants had failed to introduce specific, evidentiary facts in support of their contention that the final EIS improperly failed to consider reasonable and viable alternative fill sites. We have read the affidavits and exhibits referred to by appellants, and cannot say that this determination was in error.

Counsel for appellants assure this court that they are experts qualified in their own right to assess the reasonableness of alternative fill source sites. However, even if we assume that their qualifications as affiants were properly presented below, we cannot agree that the bare conclusions of reasonableness contained in their affidavits sufficed as a matter of law to preclude summary judgment.

The highway officials who prepared the EIS presumably considered the alternative sites proposed by appellants unreasonable and unacceptable. In contrast, the final EIS did consider those alternative borrow sites thought to be viable ones, and concluded that the site chosen was not only economically preferable, but also less environmentally disruptive than any of the other possibilities. Absent the assertion of specific evidentiary facts, the district judge was not required to deny appellees' motion and take evidence on this issue.

Finally, it is contended that the EIS failed to consider the alternative of not completing the project, and thereby avoiding altogether the environmental disruption of the excavations. Appellants claim that the discussion of the environmental impact of the excavations was of the cursory type criticized in our recent decision in Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir., 1974).

In that case, this court upheld the determination that an EIS for a dam project was adequate. Nevertheless, we went on to caution those charged with preparing impact statements against too heavy a reliance on a conclusory form of presentation, lest the act's purpose of adequately informing the public of probable significant environmental impacts be undermined. Id. at 1283-1284.

As with the EIS at issue in Trout Unlimited, that before us is also somewhat conclusory in its discussion of the impact of the planned excavations. Nevertheless, we cannot agree that it was so conclusory as to require invalidation of the district court's finding of sufficiency. ³

We uphold the district court's determination that the EIS for the I-5 project adequately discussed those alternative borrow sites which were reasonably available, and adequately considered the environmental impact of the proposed excavations.

II. CONSIDERATION OF THE PERIPHERAL CANAL'S ENVIRONMENTAL IMPACT.

Appellants concede the merit of any attempt to save public funds by interagency coordination and cooperation. They argue, however, that such cooperation cannot circumvent the clear intent of NEPA's EIS requirement that all ramifications of each proposed federal project "significantly affecting" the environment be considered at the earliest possible time prior to commencement of actual construction.

Nor, is it asserted, can linking commencement of an environmentally hazardous project to completion of an environmentally unobjectionable one be allowed to circumvent the EIS requirement for the former. Since the excavations proposed for the highway fill will also be part of the canal watercourse, they argue that the time for EIS consideration of both projects is now, before excavation commences.

As the district court properly noted, there are limits to the required scope of consideration of one project which may be remotely connected with, or have some effect upon, another. The proper test, we believe, does not depend upon the interrelation of the projects per se. Rather it depends upon whether completion of one project will inevitably involve an "irreversible and irretrievable commitment of resources" to the second. NEPA § 102(2)(C)(v), 42 U.S.C. § 4332(2)(C)(v). See Scientists' Institute for Public Information v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973), noted in 87 Harv.L.Rev. 1050, 1055-56 (1974). ⁴

Scientists' Institute, the leading case analyzing NEPA's "irreversible commitment" language, held...