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

Page 12

6 ERC 1006 National Helium v. Morton ments are not to be considered as a part of the Final Statement. However, we disagree. These were incorporated into the Final Statement and were available for consideration by all in­terested parties and are available for the infor­mation of the President, the Congress and the public. Those commenting included the vari­ous agencies within the Interior Department and ten other federal agencies, including the National Science Foundation, Atomic Energy Commission, National Aeronautics and Space Administration and the Environmental Pro­tection Agency. In addition, there were com­ments of three states, various scientific groups and a number of business and educational in­stitutions. Moreover, the Final Environmental Statement shows that the comments were con­sidered by the authors of the statement. The cases hold that the comments are to be re­garded as an integral part of the statement. See Con. Council of N. Car. v. Froehlke, 340 F.Supp. 222 (M.D.N.C. 1972), and Environ­mental D. Fund, Inc. v. Corps, of Eng. of U.S. Army, 342 F.Supp. 1211, 1217 [4 ERC 1097] (E.D. Ark. W.D. 1972). In general, the district court found fault with the fact that the impact statement did not deal adequately with economic feasibility. In our judgment, however, this subject was treated sufficiently insofar as it affected the en­vironmental consequences which, after all, are the important factors to be considered. The role of the Final Environmental Statement is to enunciate the environmental considerations for the benefit of the decisionmakers. We are of the opinion that consideration of the five subjects prescribed by the statute was sufficient. (i) Environmental impact of the proposed action. There is no contention that the loss of he­lium, should it be lost, will affect the environ­ment. It is, after all, a colorless, odorless, non­flammable, inert gas. Therefore, the matter to be weighed, and which the impact statement did weigh in accordance with our mandate in the previous case, is the secondary effect, namely, loss of the resource. As we have noted above, the supply which the government has in storage is sufficient to the year 2000 and per­haps beyond. Continued purchases by the gov­ernment would at best extend the inventory for a period of from four to fourteen years. Thus, it would not solve the problem of the future use of it. The Final Environmental Statement considers the recovery of helium from the at­mosphere. It considers the amount of electrical power which would be required and the effects of the generation of such power on air and thermal pollution. It notes that the extent of use of helium beyond the year 2000 is con­jectural and speculative, and thus the effect on the atmosphere of recovering the helium is it­self conjectural. For our purpose the statement took into consideration all of the possibilities and it was not required to do more than this. (ii) Adverse environmental effects which are unavoidable. The statement points out the future prob­lems of recapturing the lost helium if it is nec­essary. (Hi) Alternatives to the proposed action The statement considers several alterna­tives, including reliance on the normal market process, expansion of the helium program by legislative action, use of leaner gases and re­capture from the atmosphere. The discussion in our view satisfies the present requirement and the statement did not have to dwell on the imaginary horribles posed by the plaintiffs.6 (iv) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity. That which appears in parts i, ii and iii above considers the present question. The statement took into account the known sources and supplies together with the possible uses such as generation and transmission of electri­cal power for nuclear reactors, for the space program, for levitation systems of mass trans­portation and for cyrogenics. We disagree with the trial court's finding that the impact statement's failure to consider the alternative of making the helium purchase program financially self-sustaining was a fatal defect. Such an alternative is somewhat obvi­ous in that it would be a continuation of the present purchase program. This alternative is discussed in the statement. The impact of this alternative is implicit in the discussion of the several alternatives contained in the Final Statement. (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. The termination which is the proposed ac­tion is reversible by continuation of one or more of the contracts in modified form or by the negotiation of new contracts or by congres­sional action. Should the contracts be can­celled, and should the company shut down their separation plants, the helium which is now preserved would, of course, be lost. Beyond this, hard and fast predictions about the effect of termination of helium purchases 6 Cf. Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 [3 ERC 1558] (D.C. Cir. 1972). National Helium v. Morton 6 ERC 1007 on the technology which we would have in the Twenty-First Century would be nothing more than speculation. We consider the subject mat­ter sufficiently discussed in the Final State­ment. There is enough there to alert the deci­sion- makers and others concerned. Apart from the five categories, § 4332(2)(C) requires that the Department "consult with and obtain the comments of" federal agencies having jurisdiction or special expertise with respect to any environmental impact involved in a contemplated action. The impact state­ment meets the standard prescribed by § 4332(2)(C) in this regard, when viewed in light of the "rule of reason" we have here ap­proved. The requirement should not be viewed as necessitating that the completion of an im­pact statement be unreasonably or inter­minably delayed in order to include all poten­tial comments or the results of works in progress which might shed some additional light on the subject of the impact statement. Such a result would often inordinately delay or prevent any decision in environmental cases. The courts should look for adequacy and completeness in an impact statement, not perfection. E.D.F. v. Corps of Engineers, 470 F.2d at 297. In this particular case this court expressed the opinion that an ultimate resolu­tion of the issues involved in this case was ur­gent and should be expedited. 455 F.2d 657. The initial impact statement was not issued until May 16, 1972, and the Final Statement issued on November 13, 1972. To have de­layed the statement any longer would have flown in the face of what we considered a rea­sonable time for preparation of the statement. It is also contended by the parties (ap­pellees) that the statement is defective because of failure to state the purpose of the con­templated action. Section 4332(2)(C) does not explicitly require that the purpose of the con­templated government action be spelled out. While in many types of governmental action the exact purpose of the action might be un­clear and thus lead to confusion were it not stated, this is not such a case. The self-evident purpose of the proposed action here is to ter­minate the continued purchase of helium re­serves which the Secretary regards as econom­ically superfluous and beyond the goals set forth in the 1960 Amendments to the Helium Act. We see no merit in the further argument of the appellees that the real reason for contract termination was to effect a financial saving and that the Office of Management and Bud­get dictated cancellation. The Secretary termi­nated the contracts and the Office of Manage­ment and Budget does not have authority to dictate to the Secretary the decision that he is to make in connection with a,contract entered into and terminable by him.7 [ 3 ] Applying the rule of reason which is enunciated in the cases, we conclude that the statement is fully acceptable. It adequately dis­cusses future needs and future supplies. It weighs the costs now as opposed to the future. It is a comprehensive and thorough document. We disagree with the derogatory comments of the parties and the district court regarding it. Much time and opportunity have been ex­tended to the appellees. There has been much delay as a result and we repeat what we have said in our prior decisions that inasmuch as the decision has been made the termination should be carried out without delay. Accordingly, the judgment of the district court is reversed and tbe cause is remanded with directions to dismiss the action. BREITENSTEIN, Circuit Judge, con­curring. I concur in the result. It may be that my dif­ferences with the majority go to form rather than substance. The decision in United States v. Students Challenging Regulatory Agency Procedures, U.S. ^41 LW 4866, [5 ERC 1449] SCRAP, does not affect federal jurisdiction in the instant case because we have no concern with any federal statute conferring exclusive jurisdiction on an agency. The argument of the Government is that this case involves fed­eral contracts and that the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, is the only statute which gives federal courts jurisdiction over government contract cases. In the first place, this suit does not arise out of any con­tract. It is concerned with compliance with the National Environmental Policy Act of 1969, NEPA, 42 U.S.C. § 4321 et seq. In the second place the Tucker Act does not equate with the statute giving the Interstate Commerce Com­mission exclusive power to suspend rates. The general standard of judicial review of agency actions is found in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The ac­tion is set aside if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accord­ance with law. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, [2 ERC 1250] 413-414. The key phrase in § 706 is "agency action." NEPA directs that "to the fullest ex­tent possible * * * all agencies of the Federal Government shall * * * include in every * * * major Federal action(s) significantly affecting the quality of the human environment, a de­tailed statement by the responsible official" covering stated subject areas. NEPA alters the decision-making process of the federal 7 Walter Holm & Company v. Hardin, 449 F.2d 1009, 1013 (D.C. Cir. 1971).