Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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5ELR20210 ENVIRONMENTAL LAW REPORTER 5-75 the other systems of the Bonneville Unit and the Central Utah Project before work commences on those phases. The <fi Statement is a bulky one, consisting of x over 800 pages of single-spaced printing. The Statement itself is subdivided into the following headings: Description of the proposal; description of the envi­ronment ; environmental impacts of pro­posed action; mitigating measures and air and water quality aspects; unavoid­able adverse effects; short and long term environmental uses; irreversible and irretrievable commitments of re­sources ; alternatives to proposed ac­tion ; and consultation and coordination with others. The Statement then con­tains rather detailed "responses" by the Department of the Interior to "objec­tions" earlier made to the draft impact statement. (f) • The plaintiffs' attack on the State­ment is fourfold: (1) The Statement is too narrow in its scope and should in­clude the cumulative and collective en­vironmental impact of the entire Central Utah Project; (2) the Statement is in­complete in that it is a final statement as to the Strawberry Collection System only, and that it should, but does not, encompass all increments of the Bonne­ville Unit; (3) the Statement fails to adequately discuss alternatives for ob­taining water within the Bonneville Ba­sin for municipal and industrial pur­poses; and (4) the Statement fails to include and discuss a cost-benefit ratio. Before discussing each of the matters thus raised, let us first ascertain what the statute declares should be included in a Final Environmental Statement. Section 4332, 42 U.S.C. provides as follows: " * * * [A] 11 agencies of the Federal Government shall * * * include in every recommendation or report on proposals for legislation and other major Federal actions signifi­cantly affecting the quality of the hu­man environment, a detailed statement by the responsible official on "(i) the environmental impact of the proposed action, (ii) any adverse environmental ef­fects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environ­ment and the maintenance and en­hancement of long-term productivi­ty, and (v) any irreversible and irretrieva­ble commitments of resources which would be involved in the proposed action should it be implemented." (Emphasis added.) The plaintiffs first attack the State­ment on the ground that it is too narrow in scope, and should be a final statement at least for the entire Bonneville Unit, if not indeed for the entire Central Utah Project. As indicated above, the State­ment here involved is intended to be a final statement as to the Strawberry Aqueduct and Collection System only, and, according to the plaintiffs, the Strawberry system is not in itself an in­dependent "major Federal action," as mentioned in 42 U.S.C. § 4332, but only an increment of the Bonneville Unit and the Central Utah Project. We deem the question as to whether the Strawberry system is in itself an in­dependent "major Federal action," and whether the Statement should have been a "final" impact statement for the Bonneville Unit, or perhaps even the en­tire Central Utah Project, to be, in a sense, a mixed question of fact and law. By that we mean that the issue as to whether the Strawberry system is a unit unto itself, and can stand on its own two feet, or, on the contrary, whether it is so intertwined with the rest of the Bonne­ville Unit and the Central Utah Project that it is but an increment of the larger plan, is essentially one of fact. Then whether the "facts" as thus found by the trial court permit the Strawberry system to be classified as an indepen­dent "major Federal action" is essential­ly a question of law.1 Let us now exam- I. Scientists' Inst, for Pub. Info., Inc. v. Atomic Energy Com'n, 156 U.S.App.D.C. 395, 481 F.2d 1079, at 1095 (1973), footnote 68, reads as follows : "The decision whether the time is ripe for a NEPA statement on an overall re­search and development program is a mixed question of law and of fact. It concerns a question of law as to interpre­tation of the statutory phrase 'major Fed­eral action significantly affecting the qual­ity of the human environment' as it per­tains to technology research and develop­ment programs. As indicated in text, wc interpret the statute to provide for a bal­ancing approach which takes into account the Act's policies in favor of information which is both meaningful and timely. In addition, the decision involves a question of fact as to application of that balancing test to the realities of a specific program at a specific time. "With respect to judicial review of such mixed questions of law and fact, the Su­preme Court has authorized a practical standard of review, the 'rational basis' test, under which the court will reverse the agency's decision if it has no warrant in the record and no reasonable basis in law. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) ; Hanly v. Kleindienst, 2 Cir., 471 F.2d 823, 829 (1972)." ine the trial court's findings on the is­sue as to whether the Strawberry sys­tem is an independent unit, or not. Finding No. 16 reads as follows: "The Strawberry Aqueduct and Collection System has an independent utility of its own as a collection and conveyance system of waters from the designated Uinta Mountain streams for storage in the enlarged Strawber­ry Reservoir for release and use in the Bonneville Basin. Such system can operate and function separately from the remaining unconstructed systems of the Bonneville Unit or other units of the Central Utah Project. The ter­mini of the Strawberry Aqueduct and Collection System, comprising the Sol­dier Creek Dam on the westerly -end, and the Upper Stillwater Reservoir on the easterly end, delineate a reason­able and logical segment of the Bonne­ville Unit for discussion and analysis of the environmental impacts result­ing therefrom, which remain un­changed regardless of the systems to be constructed for delivery and use of project waters within the Bonneville Basin. The major federal action of Defendant Secretary Morton was lim­ited to the approval of immediate con­struction of the Currant Creek Dam and to the continuation of the con­struction of the Strawberry Aqueduct and Collection System on a logical construction schedule. The detailed discussion and analysis of the Straw­berry Aqueduct and Collection System contained in the FES and the explana­tion and discussion of the entire Bonneville Unit therein fully complies with the requirements of NEPA, and the applicable guidelines of the Coun­cil on Environmental Quality as to the scope, nature and extent of the project to be covered thereby." In our view, the trial court's finding as set forth immediately above finds more than adequate support in the record, and on appeal should be, and is, accepted by us. The next question then is whether the Strawberry system as thus "found" by the trial court can be deemed an independent "major Federal action" as that term is used in 42 U.S. C. § 4332. We agree with the trial court that the Strawberry system does constitute such Federal action. In sup­port of our conclusion see such cases as Sierra Club v. Calloway, 499 F.2d 982 (5th Cir. 1974), and Environmental De­fense Fund, Inc. v. Armstrong, 352 F. Supp. 50 (N.D.Cal.1972), supplemental opinion, 35*6 F.Supp. 131 (N.D.Cal. 1973), aff'd on appeal, 487 F.2d 814