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

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5-75 LITIGATION 5ELR20211 (9th Cir. 1973). Brief reference to these cases will prove helpful. The Calloway case concerns the Trini­ty River Project in Texas. This is a tremendous undertaking which envisions a straightening of the Trinity River and the construction of a channel of a width of 200 feet and a depth of 12 feet from the Houston Ship Channel in Galveston Bay to Forth Worth, a distance of 363 miles. The latest projected cost esti­mate is $1,356,000,000. The Wallisville Project involves the construction of a dam at the mouth of the Trinity River. The final impact statement related to the Wallisville Project, and in the trial court the environmentalists obtained in­junctive relief on the ground that the impact statement did not comply with the statute because the Wallisville Proj­ect was not in and of itself an indepen­dent "major Federal action," but merely an increment of the Trinity River Proj­ect, and that a final impact statement for the whole project was necessary be­fore work could be commenced on the Wallisville Project. In reversing on ap­peal, the Fifth Circuit declared as fol­lows: "We conclude that the Wallisville and Trinity River Projects are not in­terdependent. The nexus between the projects is not such as to require an EIS evaluation of the Trinity Project as a condition precedent to an EIS evaluation of Wallisville. The Wallis­ville EIS should speak for itself. Wallisville is a separate viable entity. It should be examined on its own mer­its. Although it has been made com­patible in certain of its features with Trinity it is not a mere component, in­crement, or first segment of Trinity. The court erred in so holding. [499 F.2d at 990] * * * * * * "The court's decision linking Wallis­ville with Trinity and requiring the Wallisville EIS to evaluate not only the environmental impact of Wallis­ville, but also to assess some or all of the effects of the Trinity Project, and the latter's effect upon Wallisville, cannot be sustained in view of our holding that the Wallisville EIS must be separately considered and deter­mined. "It was error to make Wallisville an evidentiary hostage of Trinity. The holding if permitted to stand could well spell the doom of the Wallisville Project in view of the continuing un­certainties attending the Trinity Proj­ect." [499 F.2d at 993] In Armstrong, the trial court held that the final impact -statement on the New Melones Project in California was sufficient to meet the "major Federal action" requirement of 42 U.S.C. § 4332, and that the New Melones Project did not have to await completion of the comprehensive study of the bigger and more inclusive Central Valley Project. In thus holding that court, citing Jiea-rilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), declared as follows: " * * * So long as each major federal action is undertaken individu­ally and not as an indivisible, integral part of an integrated state-wide sys­tem, then the requirements of NEPA are determined on an individual major federal action basis. Plaintiffs' sug­gestion that there is need for a com­prehensive study of the Central Valley Project should be made to the Con­gress, and not to the Court." In sum, then, we agree with the trial court that the Strawberry system in and of itself constitutes a "major Federal ac­tion" and that it is not a mere incre­ment of either the Bonneville Unit or the Central Utah Project requiring a fi­nal impact statement for something more than the Strawberry system before work may be commenced on the Currant Creek Dam. Before leaving this phase of the case, brief mention should be made of the Indian Deferral Agreement signed by the United States and the Ute Indians in 1965. The Ute and Ouray Indian reser­vations lie downstream from the Bonne­ville Unit. For the Strawberry system to function it was necessary to obtain a deferral of certain water rights held by the Indians. By contract, the Indians agreed to defer their present right to an amount of irrigation water until the de­velopment of the Ute Indian Unit, which is one of the six units of the Cen­tral Utah Project. The Ute Indian Unit, as a matter of fact, is the ultimate seg­ment of the Central Utah Project, and if that phase is not completed by the year 2005, then, according to the agreement, the Indians are to have immediate use of all deferred water or receive an equi­table adjustment. The plaintiffs argue that the Indian Deferral Agreement legally obligates the construction of the Ute Indian Unit and that such is proof positive that the Strawberry system is not a major Fed­eral action in itself, but is only a de­pendent increment in the overall project. In this regard the trial court found, however, that the Indian Deferral Agreement did not "mandate or require. the construction of other features of the Bonneville Unit nor other units of the Central Utah Project, since the terms thereof [i.e., Indian Deferral Agree­ment] can be fulfilled without such con­struction." As indicated, the agreement itself does provide that if replacement water is not ultimately furnished, then the Indians are to have immediate use. of their deferred rights or otherwise re­ceive "equitable adjustment." We agree with the trial court that the fact of the Indian Deferral Agreement does not in itself render the Strawberry system a mere increment of the total plan of the Central Utah Project. Plaintiffs' remaining grounds for re­versal relate to the internal sufficiency of the Statement, the plaintiffs contend­ing that the Statement does not contain a sufficient discussion of alternatives and does not contain a discussion of en­vironmental cost-benefit ratio. The trial court in reviewing the matter con­cluded that the Statement was not defi­cient in these two particulars. We agree. In National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir. 1973), we held that the "rule of reason" should be applied in a judicial review testing the sufficiency of a final environmental statement and declared that a judicial review of a final environmental state­ment is limited to the following: "(1) Whether FES discusses all of the five procedural requirements of NEPA. "(2) Whether the environmental impact statement constitutes an objec­tive good faith compliance with the. demands of NEPA. "(3) Whether the statement con­tains a reasonable discussion of the subject matter involved in the five re­quired areas." The concurring opinion in Mor­ton agreed that "judicial review of an impact statement is limited to a determi­nation of whether the statement is a "good faith, objective, and reasonable" presentation of the subject areas man­dated by NEPA," and that opinion went on to add that in thus testing the suffi­ciency of a final environmental state­ment, the courts should not engage in "second guessing" the experts who have prepared the statement. Our study of the very elaborate final environmental statement filed for the Strawberry sys­tem leads us to conclude that there is a "good faith, objective, and reasonable" discussion of alternatives. Over 100 pages in the Statement are devoted to a consideration of alternatives to the en-