Sierra Club v. Adams

• Decision Date: 14 March 1978
• Docket Number: No. 76-2158,76-2158
• Citation: 578 F.2d 389,188 U.S.App.D.C. 147
• Parties: , 188 U.S.App.D.C. 147, 8 Envtl. L. Rep. 20,281 SIERRA CLUB et al. v. Brock ADAMS, Jr., Secretary of Transportation of the U.S., and William M. Cox, Administrator, Federal Highway Administration, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 389

578 F.2d 389

11 ERC 1454, 188 U.S.App.D.C. 147, 8

Envtl. L. Rep. 20,281

SIERRA CLUB et al. v. Brock ADAMS, Jr., Secretary of Transportation of the U.S. and William M. Cox, Administrator, Federal Highway Administration, Appellants.

No. 76-2158.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 19, 1977.

Decided March 14, 1978.

Carl Strass, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Raymond N. Zagone and Irwin L. Schroeder, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellants. Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellants.

Leonard C. Meeker, Washington, D. C., with whom Richard A. Frank and Eldon V. C. Greenberg, Washington, D. C., were on the brief, for appellees.

Thomas Richard Spradlin, Washington, D. C., entered an appearance for Morrison-Knudsen Co., et al.

Before McGOWAN, TAMM, and ROBINSON, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

This appeal by federal officials challenges a decision enjoining United States participation in the construction of the Darien Gap Highway in Panama and Colombia because of alleged deficiencies in the Final Environmental Impact Statement filed pursuant to the National Environmental Policy Act (NEPA). ¹ Our jurisdiction is based on 28 U.S.C. § 1292(a)(1) (1970). Because we believe that the statement adequately fulfills the requirements of NEPA, we vacate the preliminary injunction and remand to the district court for further proceedings consistent with this opinion.

I

The Pan American Highway is a road system, extending from Prudhoe Bay, Alaska, to Santiago, Chile, which connects the capital cities of countries in the Western Hemisphere. There is only one section of the highway, which would traverse the Darien Gap in eastern Panama and the adjacent area of Colombia, that has not been completed. ² The Darien Gap Highway, a 250-mile, paved road with termini at Tocumen, Panama, and Rio Leon, Colombia, has been proposed to complete the system.

On December 31, 1970, Public Law No. 91-605 was enacted, providing, in part:

The United States shall cooperate with the Government of the Republic of Panama and with the Government of Colombia in the construction of approximately two hundred and fifty miles of highway in such countries in the location known as the "Darien Gap" to connect the Inter-American Highway authorized by section 212 of this title with the Pan American Highway System of South America. Such highway shall be known as the "Darien Gap Highway". ³

Under agreements between the United States and Panama and Colombia signed on May 6, 1971, the latter two countries undertook to provide not less than one-third of the cost of construction, with the United States providing the remaining two-thirds. ⁴

On June 27, 1975, the appellees ⁵ brought suit in the United States District Court for the District of Columbia, alleging that the appellants Secretary of Transportation and Administrator of the Federal Highway Administration (hereinafter referred to as the Government) had failed to prepare and process an environmental impact statement on the Darien Gap Highway. Following a hearing, the district court, on October 17, 1975, granted a motion by the appellees and enjoined the Government from furnishing further assistance toward construction of the highway until it had complied with NEPA and applicable administrative regulations, including, but not limited to, the filing of an adequate environmental impact statement. ⁶ Sierra Club v. Coleman, 405 F.Supp. 53 (D.D.C.1975). ⁷

The Government then prepared and processed an environmental impact statement on the highway, and appellees were among those outside agencies that were asked to, and did, comment on the draft statement. ⁸ On June 15, 1976, the Government filed a "Notice of Compliance with Terms of Injunction," attaching a copy of the Final Environmental Impact Statement (FEIS) and stating that it believed it could resume assistance to the construction project on July 15. ⁹ The district court disagreed, and on September 23 granted appellees' motion to continue the preliminary injunction because of certain deficiencies in the FEIS. Sierra Club v. Coleman, 421 F.Supp. 63 (D.D.C.1976).

The district court found that, although the Government had complied with the procedural requirements of NEPA, 421 F.Supp. at 65, the FEIS it submitted inadequately examined the environmental impact of the highway with regard to three matters: 1) the control of aftosa, or foot-and-mouth disease; 2) possible alternative routes for the highway; and 3) the effect on the Cuna and Choco Indians inhabiting the area that the highway is expected to traverse. Id. at 65-67. Because of these deficiencies, and until they were remedied, the Government was enjoined from "entering into any contract, obligating any funds, expending any funds, or taking any other action whatsoever in furtherance of construction of the Darien Gap Highway . . . ." Id. at 67-68. This appeal ensued. ¹⁰

II

At the outset, we are faced with the Government's contention that the appellees lack standing to challenge the FEIS discussions of alternatives to the proposed highway and the effect of construction on the Cuna and Choco Indians. The Government, however, has stated its belief that the appellees do have standing to challenge the FEIS with regard to the potential spread of aftosa. ¹¹

We agree that appellees have standing to challenge the adequacy of the FEIS based upon their concern that construction may result in the spread of aftosa into the United States. ¹² In addition, we believe that the discussion of alternatives, which is specifically required by NEPA, ¹³ is merely an extension of the aftosa control discussion, especially since one alternative would be not to build the highway. We thus perceive no jurisdictional difficulty in exploring the adequacy of the FEIS discussion of alternatives.

The effect of the proposed highway on the Cuna and Choco Indians, however, presents a more difficult standing question. ¹⁴ Appellees have not alleged any specific harm they will suffer as a result of inadequate discussion and consideration of this issue by the federal decisionmakers. ¹⁵ They argue, however, that, having established standing to challenge the adequacy of the FEIS on at least one ground, they are entitled to raise other inadequacies in the FEIS based upon the "public interest" in requiring government officials to discharge faithfully their statutory duties under NEPA. ¹⁶ We agree with this contention.

In its discussion of standing in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the Supreme Court stated that

the fact of . . . injury is what gives a person standing to seek judicial review under the statute (in question), but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.

Id. at 737, 92 S.Ct. at 1367 (citing, in footnote 12, 3 K. Davis, Administrative Law Treatise §§ 22.05-.07 (1958)); accord, Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975) ("so long as this requirement (of alleging a distinct and palpable injury) is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, . . . may invoke the general public interest in support of their claim."); see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14-15, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 84 L.Ed. 869 (1940). See generally National Wildlife Federation v. Snow, 182 U.S.App.D.C. 229, 239, 561 F.2d 227, 237 n.41 (1976); Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 334-40, 359 F.2d 994, 1000-06 (1966). This public interest concept is particularly applicable to cases brought under NEPA and the Administrative Procedure Act, see 5 U.S.C. § 702 (1976).

NEPA is an "action-forcing" statute; it places the "primary and non-delegable" responsibility for compliance with its requirements on the agency, not the public. See I-291 Why? Ass'n v. Burns, 517 F.2d 1077, 1081 (2d Cir. 1975). Section 102(2)(C) of the statute, 42 U.S.C. § 4332(2)(C) (1970), which requires a "detailed statement" of the environmental impacts of, and alternatives to, various federal actions, has been aptly described as "the heart of NEPA," combining, as it does, "the legislative objectives of full disclosure, consultation, and reasoned decisionmaking prescribed as the cutting edge of administrative reform." W. Rodgers, Environmental Law § 7.4, at 725 (1977). An interpretation that unnecessarily restricts the ability of plaintiffs properly before the court to challenge additional inadequacies in an environmental impact statement would be patently inconsistent with the unequivocal legislative intent embodied in NEPA that agencies comply with its requirements "to the fullest extent possible." 42 U.S.C. § 4332 (1970); see Realty Income Trust v. Eckerd, 183 U.S.App.D.C. 426, 431-32, 564 F.2d 447, 452-53 (1977). Furthermore, because of the statutory ¹⁷ and regulatory ¹⁸ requirements that the FEIS reflect an "inter-disciplinary" and "integrated" approach, the issues discussed in the statement will be necessarily interrelated and interdependent. A reviewing court will rarely view one issue in isolation, and its task will be aided by adversarial illumination of all critical portions of the statement. We hold, therefore, that, because appellees have established an independent basis for standing to challenge the FEIS, they also have standing to argue the public interest in support of their claim that there is inadequate discussion and consideration of the effect of the construction on the Cuna and Choco Indians.

III

We turn now to the...