Sierra Club v. Morton, No. 74-1389

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMacKinnon; Before BAZELON, Chief Judge, and WRIGHT and MacKINNON; J. SKELLY WRIGHT; MacKINNON
Citation169 U.S.App.D.C. 20,514 F.2d 856
Parties, 169 U.S.App.D.C. 20, 5 Envtl. L. Rep. 20,463 SIERRA CLUB et al., Appellants, v. Rogers C. B. MORTON, Secretary of the United States Department of theInterior, et al.
Docket NumberNo. 74-1389
Decision Date16 June 1975

Page 856

514 F.2d 856
7 ERC 1977, 169 U.S.App.D.C. 20, 5
Envtl. L. Rep. 20,463
SIERRA CLUB et al., Appellants,
v.
Rogers C. B. MORTON, Secretary of the United States
Department of theInterior, et al.
No. 74-1389.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 17, 1974.
Decided June 16, 1975.

Page 859

Syllabus by the Court

Appellants, environmental groups suing on behalf of themselves and their members, sought declaratory, injunctive, and mandamus relief against appellees, the Departments of the Interior, Agriculture, and the Army, requiring them to prepare a comprehensive regional environmental impact statement before allowing development of the Northern Great Plains, encompassing eastern Montana, northeastern Wyoming, and the western Dakotas, one of the world's richest coal basins. Held: Major federal action is contemplated in the Northern Great Plains, but it is uncertain whether the proposal for such action is sufficiently ripe to require preparation of an impact statement at this time. The case is remanded to the District Court to allow

Page 860

appellees, in the first instance, to make that decision.

1. It is clear that a comprehensive impact statement is required for "broad agency programs" as well as for "particular facilities." Scientists' Institute for Public Information, Inc. v. AEC (SIPI), 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). The courts will look beyond agency denials to see if, in fact, a "broad agency program" is under way or proposed. Infra, 169 U.S.App.D.C. at ---, ---, 514 F.2d at 870-875.

2. Here appellees' course of conduct and public statements over the past five years, as well as the findings of the District Court, prove beyond doubt that a broad agency program, regional development of the Northern Great Plains, is contemplated and that plans for controlling that development are being formulated. Infra, 169 U.S.App.D.C. at --- - ---, 514 F.2d at 875-878.

3. While federal officials are entitled to dream out loud without filing an impact statement, a statement is required when a proposal moves beyond the "dream" stage into some tangible form of sufficient ripeness. The standard of ripeness is low because the statement should be prepared before irretrievable commitments are made or options precluded by agency action. The statement is designed to aid agency decision-making, not to provide ex post facto justification for it. Infra, 169 U.S.App.D.C. at --- - ---, 514 F.2d at 878-880.

4. Four balancing tests are adopted from SIPI to determine if the time is ripe for an impact statement. Application of those tests in this case produces an uncertain result. Since certain dispositive elements of the balancing test, now uncertain, are about to be resolved, the case is remanded to the District Court to allow appellees initially to decide whether an impact statement is now necessary. Infra, 169 U.S.App.D.C. at --- - ---, 514 F.2d at 880-882.

5. On remand, appellees must report to the District Court the present posture of their plans for development of the Northern Great Plains and their decision regarding the present need for an impact statement. Appellants will be able to challenge appellees' decision. Infra, 169 U.S.App.D.C. at --- - ---, 514 F.2d at 882-883.

6. This court's limited temporary injunction is continued pending appellees' decision. Adoption by appellees of a policy of restraint with regard to development of the Northern Great Plains pending ultimate decision and preparation of a comprehensive impact statement may make enlargement of the injunction unnecessary. Infra, 169 U.S.App.D.C. at --- - ---, 514 F.2d at 883.

The District Court's grant of summary judgment for appellees is reversed and this case is remanded for further proceedings not inconsistent with this opinion.

MacKinnon, Circuit Judge, filed the dissenting opinion.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 1182-73).

Bruce J. Terris, Washington, D. C., with whom Suellen T. Keiner, Washington, D. C., was on the brief, for appellants.

Jacques B. Gelin, Atty. Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., and Raymond N. Zagone and Herbert Pittle, Attys., Dept. of Justice, were on the brief, for appellee Morton. Edmund E. Clark, Atty., Dept. of Justice, also entered an appearance for appellee Morton.

Francis M. Shea, Washington, D. C., with whom Richard T. Conway, David Booth Beers, Washington, D. C., and William H. Coldiron, Butte, Mont., were on the brief, for appellees Montana Power Co., Portland General Elec. Co., Puget Sound Power & Light Co., and Washington Water Power Co., and also argued on behalf of all other appellees.

Richard M. Merriman, Peyton G. Bowman, III, and James K. Mitchell, Washington,

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D. C., were on the brief for appellees Arkansas Power & Light Co., Oklahoma Gas & Elec. Co., and Wisconsin Power & Light Co.

Henry B. Weaver and John E. Nolan, Jr., Washington, D. C., were on the brief for appellee Atlantic Richfield Co. Frank B. Friedman also entered an appearance for appellee Atlantic Richfield Co.

James W. McDade, Washington, D. C., was on the brief for appellee Peabody Coal Co.

Justin R. Wolf, Charles A. Case, Jr., and David B. Ward, Washington, D. C., were on the brief for appellee Northern Natural Gas Co.

Robert L. Ackerly and Joseph S. Wager, Washington, D. C., were on the brief for appellee Panhandle Eastern Pipe Line Co.

Peter J. Nickles, Washington, D. C., was on the brief for appellees American Elec. Power System and Kerr-McGee Corp.

Stuart T. Saunders, Jr., William A. White, Washington, D. C., and George J. Miller, Philadelphia, Pa., were on the brief for appellee Westmoreland Resources. Max Wilfand, Washington, D. C., also entered an appearance for appellee Westmoreland Resources.

John D. Ross was on the brief for appellee Crow Tribe of Indians. L. Graeme Bell, III, Washington, D. C., also entered an appearance for appellee Crow Tribe of Indians.

Dale A. Wright and Harold L. Talisman, Washington, D. C., were on the brief for appellee Cities Service Gas Co.

Max N. Edwards, Washington, D. C., was on the brief for appellee McDonough.

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

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Circuit Judge:

Appellants brought suit in District Court seeking declaratory judgment, injunction, and mandamus against the federal appellees, the Departments of the Interior, the Army, and Agriculture, alleging that appellees had violated Section 102(2) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2), by allowing development of coal resources in the Northern Great Plains without issuing a comprehensive environmental impact statement (EIS) for the region. We must decide whether appellees' attempts to control development of coal resources in four western states constitute a major federal action within the meaning of Section 102(2), and, if so, whether those attempts are sufficiently developed to require the filing of a comprehensive regional impact statement. Answering the first question in the affirmative, we reverse the District Court's grant of summary judgment for the federal appellees and remand this case to give the federal appellees the opportunity to decide the second.

I

The Northern Great Plains Province (the Province), which covers northeastern Wyoming, eastern Montana, western North Dakota, and western South Dakota, and extends southerly through strips of Nebraska and Colorado, is one of the world's richest basins of relatively untapped coal reserves. 1 Most of the coal in the Province is located in the Fort Union and Powder River formations, which occupy the four northernmost states. The coal resting under those plains is highly desirable because it is of low sulphur content, which makes it environmentally preferable, and because it is relatively close to the surface, which

Page 862

makes it readily accessible by strip mining. Since some 85 per cent of the nation's low-sulphur coal reserves is located on public land under the jurisdiction of the Secretary of the Interior, prudent development of this valuable national asset is largely subject to federal initiative and control. In recent years, as concern about greater national self-sufficiency in energy matters has mounted, steps toward such development in the Province have been taken. But while the coal reserves of the Province are in great demand, both over the long and the short term, 2 the massive development of the area necessary to secure, utilize, and deliver those resources necessarily entails broad environmental consequences. In addition to the obvious environmental effects of strip-mining acres of now-fertile land, development would also affect the region's water supply and quality, air quality, wildlife, population distribution and composition, and economic structure. These effects would be caused not only by the mines themselves, but by the power plants, coal gasification plants, railroads, aqueducts, pumping plants, reservoirs, dams, and new housing that would necessarily accompany the strip mines.

Needless to say, such development under federal auspices demands compliance with NEPA's dictate than an impact statement accompany all proposals for "major Federal actions significantly affecting the quality of the human environment * * *." Section 102(2)(C), 42 U.S.C. § 4332(2)(C). 3 See generally Scientists' Institute for Public Information, Inc. v. AEC (SIPI), 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); Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412 (1971), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). The Secretary...

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30 practice notes
  • Mount Sutro Defense Committee Regents of University of California
    • United States
    • California Court of Appeals
    • January 24, 1978
    ...Pub. Info., Inc. v. Atomic Energy Com'n, supra, 156 U.S.App.D.C. 395, 410, 481 F.2d 1079, 1094; accord: Sierra Club v. Morton (1975) 169 U.S.App.D.C. 20, 44, 514 F.2d 856, 880 (rev'd sub nom., Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576).) However, the vitality of the......
  • Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n, Nos. 963
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 12, 1976
    ...the preparation of a regional or generic impact statement before allowing major federal action to proceed. See Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (1975), cert. granted, 423 U.S. 1047, 96 S.Ct. 772, 46 L.Ed.2d 635, 44 U.S.L.W. 3397 (1976) (requiring a regional impact st......
  • Cady v. Morton, No. 74--1984
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 19, 1975
    ...opportunity to determine whether an EIS was required in light of certain tests enunciated by the appellate court. Sierra Club v. Morton, 514 F.2d 856 (D.C.Cir. Westmoreland also failed to prove that any prejudice to which it may be subjected by reason of this suit resulted from reliance on ......
  • Sierra Club v. Andrus, No. 75-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 1978
    ...facts upon which standing is premised be not only alleged but demonstrated, Northern Great Plains Coal Case, Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856, 869-870 n.20 (1975), Rev'd on other grounds, 427 U.S. 390, 95 S.Ct. 2718, 49 L.Ed.2d 576 (1976). In this record there is no ......
  • Request a trial to view additional results
29 cases
  • Mount Sutro Defense Committee Regents of University of California
    • United States
    • California Court of Appeals
    • January 24, 1978
    ...Pub. Info., Inc. v. Atomic Energy Com'n, supra, 156 U.S.App.D.C. 395, 410, 481 F.2d 1079, 1094; accord: Sierra Club v. Morton (1975) 169 U.S.App.D.C. 20, 44, 514 F.2d 856, 880 (rev'd sub nom., Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576).) However, the vitality of the......
  • Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n, Nos. 963
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 12, 1976
    ...the preparation of a regional or generic impact statement before allowing major federal action to proceed. See Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (1975), cert. granted, 423 U.S. 1047, 96 S.Ct. 772, 46 L.Ed.2d 635, 44 U.S.L.W. 3397 (1976) (requiring a regional impact st......
  • Cady v. Morton, No. 74--1984
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 19, 1975
    ...opportunity to determine whether an EIS was required in light of certain tests enunciated by the appellate court. Sierra Club v. Morton, 514 F.2d 856 (D.C.Cir. Westmoreland also failed to prove that any prejudice to which it may be subjected by reason of this suit resulted from reliance on ......
  • Sierra Club v. Andrus, No. 75-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 1978
    ...facts upon which standing is premised be not only alleged but demonstrated, Northern Great Plains Coal Case, Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856, 869-870 n.20 (1975), Rev'd on other grounds, 427 U.S. 390, 95 S.Ct. 2718, 49 L.Ed.2d 576 (1976). In this record there is no ......
  • Request a trial to view additional results

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