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Show 6 ERC 1004 National Helium v. Morton Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682 (1949).2 It is fundamental that the Tucker Act which contains a limited consent of the United States to be sued does not authorize an action of injunction. See Richardson v. Morris, U.S , 93 S.Ct. 629 (1973) and United States v. King, 395 U.S. 1 (1969). We view the action seeking to require the Department to file an impact statement to stand on a different footing in relationship to the sovereign immunity doctrine and the cited cases because the action merely seeks 3 to obtain compliance with the National Environmental Policy Act of 1969 and is not for the purpose of asserting and enforcing a private right. Also, if the impact statement is to be meaningful the requirement must be virtually absolute. Thus, we conceive of the review of the Secretary's action as being strictly limited to compliance with the requirement of the environmental impact statement. This, of course, includes consideration given to the statement by the Secretary, for if he failed to consider it his action would assume arbitrariness and ca-priciousness. Efforts to enjoin the Secretary from terminating the contracts for an indefinite period of time must, of course, fail. We reject the plaintiffs' argument that review of the termination is permissible under the Administrative Procedure Act. We fail to perceive any violation of the 1960 Helium Act Amendments. II. Next we consider whether the Secretary and the Department fulfilled the requirements of 2 In distinguishing between actions seeking damages and suits like the case at bar, the Supreme Court said: But the reasoning is not applicable to suits for specific relief. For, it is one thing to provide a method by which a citizen may be compensated for a wrong done to him by the Government. It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government from acting, or to compel it to act. There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. As was early recognized, "the interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. * * *" 337 U.S. at 704. See also some of the numerous other cases which support the Larson holding: Du-gan v. Rank, 372 U.S. 609 (1963); Land v. Dollar, 330 U.S. 731 (1947); United States v. Sherwood, 312 U.S. 584(1941). 1 Since the defendants are engaged in upholding a public right they can only be acting pursuant to public laws. § 4332. A primary issue is the scope and the test of judicial review. First, what is the standard to be used in such review and, second, whether the court correctly assessed the agency's action in the light of the NEPA requirements. A. T H E STANDARD TO BE APPLIED. The specific procedural requirements of NEPA are delineated in 42 U.S.C. § 4332. Section 4332(2)(A)-(H) imposes specific procedural duties on federal agencies, one of which is the duty of preparing a detailed impact statement to accompany any recommendation for a major federal action significantly affecting the environment. The requirements of this impact statement contained in § 4332(2)(C) include five specific areas to be covered in the impact statement: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposed 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. [ 2 ] The trial court employed the "arbitrary and capricious" standard of § 706 of the APA.4 This sets aside the action if it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The trial court purportedly relied on the Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14 [2 ERC 1250] (1971). This case did not, however, involve the preparation of an environmental impact statement. This was a review of the decision of the Secretary of Transportation in respect to the building of a highway through a park. This was in truth "agency action." The decision of the Secretary in Overton Park was concerned with the Department of Transportation Act of 1966 and the Federal- Aid Highway Act of 1968. In assessing the adequacy of the impact statement, we are not here reviewing, as we said above, agency action within the meaning of § 706 of the APA. Rather, we are concerned with the NEPA requirement which is, to be sure, a prerequisite for agency action but is not agency action itself. The trial court's conclusion that it was required by Overton Park to apply the 4 National Helium Company, et at. v. Morton, No. W-4568, filed June 11, 1973 [5 ERC 1545] (D. Kansas), page 26. National Helium v. Morton arbitrary and capricious standard was, in our view, erroneous. The better reasoned decisions have required an objective good faith effort to comply with the statutory procedural requirements. Other than that, the courts have demanded that the agency do more than mechanically pursue the procedural standards. Thus, in Calvert Cliffs' Coord. Com. v. United States A.E. Com'n, 449 F.2d 1109 [2 ERC 1779] (D.C. Cir. 1971), the court added to the good faith standard by saying that the agency must comply with the procedural requirements to the fullest extent possible. The same Circuit in Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 [3 ERC 1558] (D.C. Cir. 1972), has said that the procedural requirements are not intended to be a straitjacket or to demand what is, fairly speaking, not meaningfully possible. Finally, the most recent decision of the D.C. Circuit, Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, D.C. Cir., No. 72-1331, June 12, 1973, [5 ERC 1418] expounds the standards more clearly than earlier decisions: It is apparent, however, that the Commission seeks to avoid issuing its forthcoming "environmental survey" as an impact statement under Section 102, not out of any desire to circumvent NEPA's procedural requirements, but rather because of a fear that Section 102's requirements as to the contents of an impact statement are so strict, particularly as to the need for "detail" in the statement, that any Commission attempt to issue its environmental survey as a NEPA statement would be doomed to failure. While we do not altogether understand the Commission's fears, we feel they are based on certain misapprehensions as to what NEPA requires. Accordingly, if the Commission's environmental survey is prepared and issued in accordance with NEPA procedures, and if the Commission makes a good faith effort in the survey to describe the reasonably foreseeable environmental impact of the program, alternatives to the program and their reasonably foreseeable environmental impact, and the irreversible and irretrievable commitment of resources the program involves, we see no reason why the survey will not fully satisfy the requirements of Section 102(C). The environmental impact statement should be placed in perspective. The relevant provisions bring environmental lactors into the agency decision-making placing litem on" 6 ERC 1005 an equal footing with economic, technical and other considerations. Also, this environmental impact statement serves as source material lor" the head of the agency, the Congress, tor the President and the public. See Calvert Cliffs', supra. If the.,agency had failed altogether to follow out the procedure required by N E P AT the arbitrary and capricious standard might" well apply, l hat is not our present problem. me rule of reason is a more appropriate standard where the sufficiency of the statement is being tested.5 In summary, then, our view is that the review of FES 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. III. The remaining issue and the crucial one in the case pertains to the adequacy of the Final Environmental Statement testing it by the five prescribed areas set forth in § 4332(2)(C), supra. As a preface, we note that there is some dispute as to whether the comments which were given by the various agencies and institutions to which the draft environmental statement were sent are to be regarded as a part of the Final Statement. The Department solicited, received and considered comments from many interested parties, including the plaintiff-appellees. They contend that the various com- 5 The cases cited by the trial court as calling for a "careful review" of agency action in environmental cases do not support the trial court's use of the "arbitrary and capricious" standard in assessing the factual adequacy of an impact statement. Calvert Cliffs'" did not involve the review of an impact statement. Scenic Hudson was concerned with the ad-quacy of an agency's decision, not the adequacy of the impact statement contributing to that decision. N.R.D.C. v. Morton dealt with the legal question of whether an agency's impact statement could exclude environmental alternatives merely because the agency had no specific authority to implement them. E.D.F. v. Corps of Engineers is somewhat confusing in its discussion of the standard of review. Careful examination of the case reveals, however, that the language about using the "arbitrary and capricious" test refers to review of agency decisions rather than the factual sufficiency of impact statements. The court actually adopted the "rule of reason" test which we have here approved when it assessed the factual sufficiency of the agency's compliance with § 102(2)(D) of NEPA. 470 F.2d at 297. A similar test would presumably be applied by that court in assessing the factual adequacy of other procedural requirements under § 102, including preparation of the impact statement. |
