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

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6 ERC 1002 National Helium v. Morton DOYLE, Circuit Judge. This cause has been appealed on prior occa­sions In National Helium Corporation v. Morton, 455 F.2d 650 [3 ERC 1129] (10th Cir. 1971), the district court had ruled that he­lium purchase contracts entered into pursuant to the Helium Act, 50 U.S.C. § 167 et seq. could not be terminated by the Secretary of the Interior without the filing by the Interior De­partment of an environmental impact state­ment in accordance with 42 U.S.C. § 4321 et seq. This court affirmed that decision, holding that the Department was required to comply with this provision of the National Environ­mental Policy Act (NEPA). Following the fil­ing of an environmental impact statement by the Department, the Secretary again termi­nated the helium purchase contracts and once again plaintiffs-appellees filed an injunction suit in the United States District Court for the District of Kansas. The district court again en­joined the Secretary. On this occasion it was due to the dissatisfaction of the court with the impact statement. There have been two other appeal proceedings presented to us. One of these involved the scope of the retrial- whether it was to be an agency review or a de novo hearing. The other had to do with efforts of plaintiffs-appellees to discover government documents. The district court filed the decision leading to the instant appeal on June 11, 1973. It again enjoined the Secretary of the Interior from terminating three of the helium purchase contracts. Although the Department had filed an impact statement the court ruled that it had failed to comply with the mandate of the Na­tional Environmental Policy Act of 1969; that the impact statement, if not deficient in scope, was essentially lacking in depth. At present, then, the primary issue before the court is whether the Department's impact statement or report was in accordance with the statutory standards and in accordance with this court's mandate in the prior case. On the prior occasion and now the Secre­tary terminated the contracts pursuant to their express termination provisions. He did so on the basis that the helium program had been substantially carried out. The mentioned pro­visions authorize him to terminate when there has been a substantial diminution in helium requirements, discovery of large new helium resources or other changes of a similar nature.1 1 In our prior opinion, 455 F.2d at 653, we said: Under the Act the Secretary is not required to purchase any helium. The entire matter is left to his discretion. In deciding to terminate the con­tract the Secretary stated that the basic purposes of the Act had been fulfilled, that is that the 25- year purchase program envisioned by the Act was unnecessary because as of the time of termination his estimates showed that there was enough he- At the time that these contracts were en­tered into, the U. S. helium requirements amounted to 530 million cubic feet of helium per year. This requirement increased in sub­sequent years, but commenced to decline in 1967 and has declined every year since so that in the year 1970 the demand had decreased to 400 million cubic feet. An average of 3.126 bil­lion cubic feet of helium had been purchased each year. In the years 1971-72 the demand diminished in substantial amounts and all of the purchases have decreased, although they continue to be in excess of two billion cubic feet annually. During this entire purchase pe­riod the government through the Bureau of Mines had purchased enough helium to meet all of its needs and has not needed to use the purchased helium. Furthermore, the govern­ment believes that it has much more of a sup­ply than can possibly be used between now and 2000. It is estimated that it is six times as much as will be needed. Following this court's decision the Interior Department proceeded at once to conduct a study leading to the preparation and filing of an environmental impact statement. The ini­tial draft was submitted to interested parties, including the plaintiffs, and comments were received. These are included as part of the re­port of the Department. The final environ­mental statement was issued November 13, 1972. The hearing in the district court con­sisted of a judicial review of the administrative record. It was not a trial de novo. (This was in accordance with the adjudication of this court after the mentioned interlocutory appeal.) The proceedings in the district court were extensive as to the composition of the administrative record. Plaintiffs had full opportunity to ex­press their views, and the court's opinion was thorough and exhaustive. In its final decision the court ruled that it was limited to determining whether the agency's action was arbitrary, capricious, an abuse of discretion or otherwise not in accord­ance with the law. It concluded that the De­partment's effort in preparing the impact statement was an insufficient one which failed to come up to the mentioned standard in nu­merous respects. It characterized the state-lium in storage to fulfill government require­ments through 1995. The Secretary notified the companies on January 26, 1971, that the con­tracts would be terminated effective March 27, 1971. In his letter he stated that there had been a diminution in the requirements of helium for es­sential governmental activities, and that there had been new discoveries since the execution of the contract, which discoveries had provided large sources of available helium if more of the gas "is required for essential government activi­ties than is now in storage or will be recovered in government plants." National Helium v. Morton 6 ERC 1003 ment as "feeble," "obviously incomplete," "appallingly deficient," "startling in its brev­ity and lack of depth," and, finally, said that the statement totally failed to consider the en­vironmental impact of termination. The court disapproved the statement in its entirety and remanded the cause for further proceedings. Reversal is demanded on the following grounds: First, it is contended that there was a lack of jurisdiction for the district court to even enter­tain the case in view of the Supreme Court's recent decision (rendered since our last deci­sion) in United States v. Students Chal. Reg. Agcy. Pro. (SCRAP), U.S , 93 S.Ct. 2405 [5 ERC 1449] (1973). Second, the environmental statement was valid and sufficient; the district court erred in condemning it. Third, the Secretary complied with the pro­cedural requirements of NEPA as well as with this court's mandate. Hence, there was no jus­tification for issuing the injunction. Fourth, the district court erred in consid­ering grounds other than sufficiency of F.E.S. since it lacked authority to enjoin for any ground except noncompliance with NEPA. I. JURISDICTION A. WHETHER THE AUTHORITY OF T H E SECRETARY IS SUPERSEDED BY NEPA. First we consider the renewed challenge to jurisdiction. As above noted, this question was determined adversely to the government in the early appeal. See 455 F.2d at 653-54. The government now urges that the Supreme Court's recent decision in United States v. Stu­dents Challenging Regulatory Agency Proce­dures, supra, has changed the applicable law and that this issue must be reexamined. In this recent case the Supreme Court reviewed the decision of the District of Columbia three-judge court which enjoined a proposed rail­road rate increase of the Interstate Commerce Act. Under that Act a railroad is required to give at least 30 days notice for carrying out a proposed rate increase. During this period the Interstate Commerce Commission may, pur­suant to § 15(7) of the Act, suspend the opera­tion of the proposed rate for a maximum of seven months pending an investigation and de­cision of the lawfulness of the new rates. The Interstate Commerce Commission refused to suspend the rate increase and the environmen­tal issue arose from the fact that the increase involved a 2.5 percent surcharge on nearly all freight rates. Plaintiffs alleged that the modi­fied rate structure would discourage the trans­portation of recyclable materials and promote the use of raw materials which compete with scrap material and would thereby affect the environment. The Court based its decision on Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658 (1963), which had held that Congress had in the ICC Act vested exclusive power in the ICC to suspend rates pending final decision and had deliberately ex­tinguished judicial power to grant this relief; the district court lacked jurisdiction to grant an injunction. It seems apparent that the case at bar differs from the so-called SCRAP decision in that the Helium Act does not vest the Secretary with the same kind of regulatory authority as was present in the SCRAP case. The holding that NEPA did not subvert the power of the Inter­state Commerce Commission was not surpris­ing since the Commission is a tribunal in its own right with peculiarly exclusive authority within its sphere. The SCRAP decision does create at least a shadow of doubt as to whether the Secretary's power was undermined by NEPA. The fact, however, that it gives pause is not enough be­cause the differences between the two condi­tions are marked. [ 1 ] The district court held that additional bases of jurisdiction existed under 28 U.S.C. § 1331 (federal question), § 1361 (action to compel a federal officer to perform his duty), and §§2201 and 2202 (declaratory judg­ments). Jurisdiction on other than NEPA grounds becomes important only if we find compliance with NEPA. This argument is su­perfluous since NEPA furnishes a jurisdic­tional base, and the case being properly in fed­eral court it is there for all purposes. Hence, we have no concern over jurisdiction outside the NEPA base. B. CONTRACT TERMINATION-USE OF INJUNCTION The trial court did not follow this court's mandate that the only issue giving the district court jurisdiction to entertain the injunction suit was the noncompliance with the require­ment of an impact statement. We stated in our former opinion that the Secretary was not compelled to purchase any helium; that the matter was left to his discretion and he was within his rights in terminating the contracts. We adhere to these views. We have fully considered the Supreme Court cases which prohibit injunctive relief against governmental officers on account of their upholding the rights of the government arising under a contract. Such a suit is distin­guished by the Supreme Court from actions seeking compensations for an alleged wrong and are regarded as actions against the sover­eign to which there has not been consent. See