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

Page 13

6 ERC 1008 agencies and brings environmental factors to an equal footing with economic, technical, and other traditional considerations, all of which must be balanced by the decision-maker. The issue of scope of judicial review must be divided into two parts: first, the review of the Final Environmental Statement (FE5), sec­ond the review of the action of the Secretary terminating the contracts. See Wyoming Out­door Coordinating Council v. Butz 10 Cir p.2d , slip opinion p. 12, n. 3 p ERC 1811]. I believe that different standards apply to each part. . I reject, and I believe that the majority opinion rejects, the apparent holdings of the Eighth and Fourth Circuits that an environ­mental statement is judicially reviewable on us merits to determine sufficiency. See Environ­mental Defense Fund v. Corps of Engineers of the United States Army, 8 Cir., 470 F.2d 289 [4 ERC 1721], 298, and Conservation Council-of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 [4 ERC 2039]. I believe 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. The courts should not second-guess the scientists, experts, economists, and plan­ners who make the environmental statement. In my opinion FES is an excellent job which fully complies with both the letter and the spirit of NEPA. It is a comprehensive study which displays objectivity and good faith Its discussion reasonably presents the environmental effects, the alternatives the relationship between short-term and long-term uses of man's environment, and the pos­sible economic effects. This brings me to the second question, judi­cial review of the Secretary's action termi­nating the contracts. Here the standard is that provided by the APA. The statement of the Secretary at termination of the contracts shows that in accordance with NEPA he care­fully reviewed FES. His action was not a me­chanical compliance with NEPA but rather a full consideration of FES with an understand­ing and reasonable application of its compre­hensive study. He balanced the environmental factors with the other pertinent factors. His fi­nal action was neither arbitrary, capricious, nor an abuse of discretion. Accordingly, the district court's injunction was improper. One other point should be mentioned. Nei­ther the statements of the trial court nor of this court determine the contractual rights of the parties, whatever they may be. Those are for consideration by the Court of Claims under the Tucker Act. EOF v. TV A EDF v. TVA U.S. District Court Eastern District of Tennessee Northern Division E N V I R O N M E N T A L DEFENSE FUND INC., TROUT UNLIMITED, AS­SOCIATION FOR THE PRESERVA­TION OF THE LITTLE T, and THOMAS BUREL MOSER v. TENNESSEE VAL­LEY AUTHORITY and AUBREY J. WAGNER, Chairman, Tennessee Valley Au­thority, No. 7720, October 25, 1973 WATER 1. Federal, state, and local regulation - Navigable waters (§28.35) Federal, state, and local regulation - Administrative agencies - In gen­eral (§28.601) Tennessee Valley Authority's completion of one-half of Tellico dam project prior to enactment of National Environmental Policy Act must be considered in determining scope of reasonable alternatives to project required by Act. 2. Federal, state, and local regulation - Navigable waters (§28.35) I Federal, state, and local regulation - Administrative agencies - In gen­eral (§28.601) National Environmental Policy Act is sa­tisfied by Tennessee Valley Authority's Tel­lico dam project environmental impact state­ment that discusses project's effect on arche-olo^ ical resources, that analyzes water quali­ty changes that will occur as result of proj­ect that presents detailed economic discus­sion of project, and that discusses environ­mental and economic values of alternatives to project. 3. Federal, state, and local regulation - Navigable waters (§28.35) Federal, state, and local regulation - Administrative agencies - Proce­dure before agencies (§28.621) National Environmental Policy Act's Sec­tion 102(2)(B), which requires federal agen­cies to develop procedures that will insure consideration of presently unquantified envi­ronmental values, does not require Tennes­see Valley Authority to mathematically com­pute dollar value of environmental amenities that will be harmed by construction of pro­posed Tellico dam project, but requires only TVA's development of procedures permitting appropriate consideration of such values.