Sierra Club v. Coleman

• Decision Date: 23 September 1976
• Docket Number: Civ. A. No. 75-1040.
• Citation: 421 F. Supp. 63
• Parties: SIERRA CLUB et al., Plaintiffs, v. William T. COLEMAN, Jr., Secretary of Transportation of the United States, and Norbert T. Tiemann, Administrator, Federal Highway Administration, Defendants, Morrison-Knudsen Co., Inc., Intervenor-Defendant, Constructora Emkay S. A., Intervenor-Defendant.
• Court: U.S. District Court — District of Columbia

421 F. Supp. 63

SIERRA CLUB et al., Plaintiffs, v. William T. COLEMAN, Jr., Secretary of Transportation of the United States and Norbert T. Tiemann, Administrator, Federal Highway Administration, Defendants Morrison-Knudsen Co., Inc., Intervenor-Defendant Constructora Emkay S. A., Intervenor-Defendant.

Civ. A. No. 75-1040.

United States District Court, District of Columbia.

September 23, 1976.

Leonard C. Meeker, Richard A. Frank, Eldon V.C. Greenberg, Center of Law and Social Policy, Washington, D. C., for plaintiffs.

Irwin L. Schroeder, Jr., U. S. Dept. of Justice, Washington, D. C., for defendants.

Thomas D. Finney, Jr., Thomas Richard Spradlin, Washington, D. C., for intervenors.

MEMORANDUM AND ORDER

BRYANT, District Judge.

This matter is now before the Court on plaintiffs' motion for an extension of the preliminary injunction heretofore entered in this case and defendants' opposition thereto. This case was last before the Court eleven months ago, at which time the Court found that defendants had failed to comply with the procedural and substantive requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., in their preparation of an environmental impact assessment relating to their construction of the Darien Gap Highway through Panama and Colombia. As a result, the Court enjoined further work on the project until such time as compliance with NEPA had been effected, 405 F.Supp. 53. Defendants have now complied with the procedural requirements of NEPA and produced a Final Environmental Impact Statement for the project, and now assert that they may proceed with the project. Plaintiffs contend that the FEIS is defective in certain critical areas, and argue that the injunction should therefore be extended. After an examination of the FEIS in light of the parties' arguments, the Court concludes that the statement is indeed so deficient in certain basic respects that the injunction must be extended until those deficiencies are remedied.

When this matter was last before the Court, the earlier assessment was found to lack sufficient discussion of the problems of control of aftosa, or foot-and-mouth disease (FMD), of the environmental impact of possible alternative routes for the highway, and of the effects of the highway on the Cuna and Choco Indians inhabiting the area through which the highway is expected to be built. While the FEIS is in general a significant improvement over the earlier assessment, and while the discussion of those three topics has been modified to various degrees, the FEIS still fails to adequately examine the environmental impact of the proposed Darien Gap Highway with regard to those matters.

The premise from which any environmental impact statement must begin is the recognition that its goal is to provide a detailed discussion sufficient to allow the agency decision maker to fully consider in his or her decisional calculus the possible environmental effects of various alternative paths the agency might choose to pursue with respect to a given project. See, Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 146 U.S.App. D.C. 33, 449 F.2d 1109 (1971); Scientists' Institute For Public Information v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973); Natural Resources Defense Council v. Morton, 148 U.S.App. D.C. 5, 458 F.2d 827 (1972); Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796 (1975). These cases also establish that the degree of detail required in the analysis depends on the circumstances and nature of the project involved. In the present case, the defendants propose to build the first major highway through a region until now almost wholly undisturbed by any encroachment of modern civilization, an area by all accounts constituting an ecosystem virtually unique to the world. A more paradigmatic example of the need for thorough and strict application of the requirements of NEPA could hardly be found, yet the defendants' compliance continues to reflect a minimalist approach to those requirements. While this may be due to their failure to recognize NEPA's applicability for literally years during the earlier phases of the project, that failure does not justify any relaxation of those requirements now.

As was the case when this matter was first before the Court, the most significant environmental problem related to the proposed highway is the transmission of aftosa (FMD) into North America which will occur in the absence of stringent control measures along the highway and in Panama, Colombia, and other Central American nations. This problem, as well as the general background of the project, is more fully described in the Court's earlier opinion, 405 F.Supp. 53. The FEIS recognizes the potentially disastrous results of an outbreak of FMD in the United States alone, estimating that it might create a loss of $10 billion in domestic livestock in the first year alone, as well as possibly causing the extinction of certain endangered livestock species. Yet the statement concludes that the "increased risk of such an outbreak due to the construction of the Darien Gap Highway is considered to be insignificant in light of the control programs now in existence in the U.S., Central America, Mexico and Panama and the control program now being developed in Colombia." FEIS at vi. A closer look indicates that while the Panamanian program is well-established, the Colombian program (being carried out under U.S. supervision, assistance, and financing) "has not accomplished all the objectives agreed upon" and that "administrative difficulties in Colombia have slowed purchase of equipment, building of quarantine facilities, movement of cattle herds located near the border, and other similar activities." FEIS at 6-17. Indeed, it is apparent that the only real basis for the initial optimistic assessment of no significant risk is the assertion that "until the FMD program is in satisfactory operation, no highway construction...