Sierra Club v. Andrus, 75-1871

Citation581 F.2d 895,189 U.S.App.D.C. 117
Decision Date15 May 1978
Docket NumberNo. 75-1871,75-1871
Parties, 189 U.S.App.D.C. 117, 8 Envtl. L. Rep. 20,490 SIERRA CLUB et al. v. Cecil D. ANDRUS, Secretary of the Interior and James T. Lynn, Director of Office of Management and Budget, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil 74-1017).

Peter R. Taft, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., with whom Raymond N. Zagone, L. Mark Wine, Dirk D. Snel, Attys., Dept. of Justice and Steven Gottlieb, Asst. Gen. Counsel, Office of Management and Budget, Washington, D. C., were on the brief, for appellants. Also Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellant.

Bruce J. Terris, Washington, D. C., with whom Zona F. Hostetler, Washington, D. C., was on the brief, for appellees.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

Opinion filed by MacKINNON, Circuit Judge, concurring in part and dissenting in part.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

The central legal issue in this case is whether and on what occasions the National Environmental Policy Act (NEPA) requires an agency to prepare an environmental impact statement (EIS) to accompany its annual budget request for the operation of a program having significant environmental consequences.

The particular program that occasioned the lawsuit is the National Wildlife Refuge System (sometimes referred to as System, or NWRS). The System is administered by the Department of the Interior's Fish and Wildlife Service (sometimes referred to as Service, or FWS).

Since the commencement of this suit, the FWS has prepared a programmatic environmental statement on the program which covers operation of the NWRS for the next ten years, centering on a projection of a roughly constant level of funding. No challenge has been made to the adequacy of this EIS. Rather, plaintiffs obtained, and now seek affirmance of, the district court's declaratory ruling that an EIS adequate to then existing circumstances is required with each annual budget request. We reject this Per se position and hold that the statement prepared by the Service satisfies its NEPA obligations, subject to any future decision of the agency to reevaluate the program or a drastic change of circumstances affecting the operation of the program.

We affirm the district court's other declaratory ruling that the Office of Management and Budget (OMB) is required to develop procedures to fulfill its NEPA obligations in connection with the Budget process.

I. BACKGROUND
A. The National Wildlife Refuge System

The National Wildlife Refuge System consists of more than 350 refuges containing more than 30 million acres in 49 of the 50 states. The primary purposes of the NWRS are to preserve endangered species and to sustain populations of migratory birds, particularly waterfowl, by maintaining intact a diverse network of their natural habitats. A secondary purpose of the System is to provide for its educational and recreational use (study, observation, and hunting) by people.

The System is administered by the Service according to the provisions of several statutes. 1 Much of the refuge land was acquired during the 1930's. After a period of little growth during the 1940's and 50's, the System has been enlarged during the 60's and to the present, particularly in the area of wild rivers and of wetlands. (There has recently been increasing recognition of the contribution to the preservation of important wildlife made by wetlands, which have been rapidly depleted.) During this period of territorial growth, new statutory mandates (such as the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543), and increased public use of the NWRS, the resources devoted to staff and maintain the Refuge System have not kept up with the rate of territorial growth. 2 Between 1973 and 1976, there was a 7% Decrease in staffing, while the number of field stations increased by 10 percent. 3 This has led to a substantial ($83 million) backlog of rehabilitation work, as well as unfulfilled construction work, new and replacement, E. g., water control structures, roads, and buildings. 4 Given the policy decision to plan for roughly constant total expenditure (approximately $43 million in 1974 dollars), the FWS focuses on a strategy of increasing the effectiveness of the NWRS in its primary conservation task, while gradually reducing its direct use by the public. The Service's statement (FES) analyzes the environmental consequences of this proposed strategy, alternatives, and mitigating measures.

B. Plaintiffs' Contentions

Plaintiffs are three environmental organizations. Their standing will be discussed subsequently. They advance two arguments that section 102(2)(C) of NEPA 5 obligates the Service to prepare an EIS on each annual budget request for the System: (a) that past and present proposals to cut down on NWRS operations are "proposals for legislation . . . significantly affecting the quality of the human environment . . . ," or (b) that the NWRS is so vital to protection of the environment that the annual proposal on the scope and nature of its operation Per se "significantly affect(s) the quality of the human environment."

Plaintiffs further contend that section 102(2)(B) of NEPA 6 requires OMB to develop procedures to assure consideration of environmental factors in the budget process, including identification of which budget requests have significant environmental consequences and what is required of the agencies of the executive branch in submitting these requests to OMB.

C. District Court Decision

The district court granted summary judgment for the plaintiffs 7 on the basis of the Per se argument concerning budget proposals for operation of a major environmental program such as the NWRS. The court relied on the guidelines implementing NEPA issued by the Council on Environmental Quality (CEQ). These guidelines explicitly include "requests for appropriations" within the definition of "action" for NEPA purposes. 8 The court also relied on cases requiring an EIS in connection with the request for appropriations to construct or otherwise initiate a specific project. 9 The court took note of the programmatic environmental statement being prepared by the defendants, but held that since it was directed at the long range goals of the NWRS, it would not satisfy the NEPA requirement of an analysis specifically directed to the proposed action in a "finely tuned" manner. 10 Accordingly, the district court granted the plaintiffs declaratory relief that the defendants were in violation of NEPA, that an EIS was required on the annual budget proposal for the NWRS, and that OMB was required

to develop formal methods and procedures which will, with respect to the Office's own administrative actions and proposals, identify those agency actions requiring environmental statements to be prepared, considered, and disseminated. 11

II. STANDING

The defendants challenge the summary judgment granted to plaintiffs in view of their failure to adduce proof of injury in the face of defendants' denial of plaintiffs' standing and assertion of a disputed factual issue as to their injury. 12 Plaintiffs alleged in their complaint that their members use the Refuge System and are affected by the environmental impact of the proposal concerning the operation of the System. 13 Alternatively, plaintiffs assert that their organizational interests in disseminating the information which NEPA requires the proposing agency to compile and disclose provide standing under SIPI, supra note 8, 481 F.2d at 1087 n. 29. These allegations were not supported by affidavits in plaintiffs' motion for summary judgment.

There is little doubt in our mind that some of plaintiffs' hundreds of thousands of nature-oriented members use the Refuge System, so that at least one of them could thereby satisfy the "minimal" standing requirements of Sierra Club v. Morton (Mineral King), 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) and United States v. SCRAP (SCRAP I), 412 U.S. 669, 688-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). 14 Plaintiffs did not file specific affidavits to that effect. On the other hand, one can hardly say that the issue was sharply drawn by the defendants' pleadings. In their statement of genuine issues opposing summary judgment, the defendants denied that plaintiffs had "been injured" by operation of the Refuge System or budget decisions concerning the System. 15 However, this point was made in the context of defendants' denial of the allegation that there were plans to reduce the funding of the NWRS with consequent impairment of the Refuge System. Defendants' pleadings did not specifically contest the proposition that plaintiffs' members use and are affected by the System and how the FWS proposes to operate it, which was the underpinning of the Per se argument accepted by the district court. While we do not minimize the importance of standing requirements, the issue is whether their disposition required a trial to resolve pertinent issues of fact. A trial is not automatically required by a general denial of standing. However, to avoid any possible implication of foreclosure or estoppel, we make it clear that on the remand for further proceedings, if there is a genuine issue as to use of the Refuges by plaintiffs' members, defendants may raise it in appropriate proceedings. 16

III. NEPA AND THE BUDGET PROCESS
A. Absolute Positions on NEPA Applicability

The plaintiffs' position is simple and logical. NEPA requires "all agencies of the Federal Government" to prepare an EIS to accompany "every recommendation or report on proposals for legislation . . . significantly affecting the quality of the human environment." 17 The EIS guidelines of...

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