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Show ERC 1008 EDFv. TVA 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 (FES), sec-i nd, the review of the action of the Secretary terminating the contracts. See Wyoming Outdoor Coordinating Council v. Butz, 10 Cir., F.2d , slip opinion p. 12, n. 5 [5 ERC 1811]. I believe that different standards apply to each part. I reject, and I believe that the majority pinion rejects, the apparent holdings of the Eighth and Fourth Circuits that an environmental statement is judicially reviewable on its merits to determine sufficiency. See Environmental Defense Fund v. Corps of Engineers of he United States Army, 8 Cir., 470 F.2d 289 [A 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 elationship. between short-term and long- .;rm 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 rovided by the APA. The statement of the Secretary at termination of the contracts hows that in accordance with NEPA he care-fufly reviewed FES. His action was not a me-ihanical compliance with NEPA but rather a f .11 consideration of FES with an understanding and reasonable application of its comprehensive study. He balanced the environmental actors with the other pertinent factors. His final action was neither arbitrary, capricious, -or an abuse of discretion. Accordingly, the district court's injunction was improper. One other point should be mentioned. Nei-her the statements of the trial court nor of this court determine the contractual rights of the parties, whatever they may be. Those are for msideration by the Court of Claims under he Tucker Act. EDFv. TVA U.S. District Court Eastern District of Tennessee N o r t h e r n Division E N V I R O N M E N T A L DEFENSE FUND, INC., TROUT UNLIMITED, ASSOCIATION FOR T H E PRESERVATION OF T H E 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. F e d e r a l , 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 Environmenta'i 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) F e d e r a l , state, and local r e g u l a t i o n - Administrative agencies - I n 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-ological 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. t3. Federal, state, and local regulation - Navigable waters (§28.35) Federal, state, and Local regulation - Administrative Jigencies - Procedure before age?ncies (§28.621) National Environme ntal Policy Act's Section 102(2)(B), which requires federal agencies to develop procedures that will insure consideration of prese ntly unquantified environmental values, do es 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. EDFv. TVA 6 ERC 1009 ) 4. Federal, state, and local regulation - Navigable waters (§28.35) Federal, state, and local regulation - Administrative agencies - Judicial review - In general (§28.6811) Federal district court, in deciding whether Tennessee Valley Authority's Tellico dam project complied with National Environmental Policy Act, must consider whether TVA's computation of project's environmental costs and benefits was arbitrary in light of standards established by Act, although court may not review TVA's computation of project's electric power and flood control benefits. STATUTES Federal - National Environmental Policy Act (§95.011) Construed. Robert L. Echols, of Dearborn & Ewing, Nashville, Tenn.; Jon T. Brown and Wallace L. Duncan, of Duncan' & Brown, Washington, D.C; Lawrence R. Reno, of Reno & Judd, Denver, Colo.; Edward Lee Rogers, East Setauket, N.Y.; and Julian D. Butler, of Butler & Potter, Huntsville, Ala., for plaintiffs. K Robert H. Marquis, TVA general counsel, Beauchamp E. Brogan, and Justin M. Schwamm, Knoxville, Tenn., for defendant. Full Text of Opinion TAYLOR, J.: This action was commenced to enjoin the Tennessee Valley Authority from completing construction of the Tellico Dam Project. Plaintiffs allege violation of the National Environmental Policy Act,1 the National Historic Preservation Act,2 and the Federal Water Pollution Control Act Amendments of 1972.3 On January 11, 1972, this Court enjoined defendants from continuing further construction of the project. From September 17 through September 20, 1973, the trial on the merits was held. For the reasons indicated in the remainder of this opinion, we conclude that the preliminary injunction entered previously should be dissolved. /. Background The general background of this litigation, the parties involved, and the history of the project are set forth in our memorandum of § ' 42 U.S.C. § 4331 et seq. (hereafter referred to as ~ NEPA). 216 U.S.C. § 470f and Executive Order No. 11593. 1 33 U.S.C. § 1323. January 11, 1972." This litigation stems from the construction of a concrete and earthfill dam near the mouth of the Little Tennessee River. TVA will ultimately acquire thirty* eight thousand acres for development of the project. Sixteen thousand, five hundred acres will be inundated upon completion of the res* ervoir; the remaining acreage will be developed for industrial, commercial, residential, and recreational purposes. The project plan also contemplates the creation of a new city. Timberlake, with a population of fifty thousand persons. The project calls for the impoundment of the first thirty-three miles of the Little Tennessee River. The river and its environs present an extremely attractive setting, and are the source of thousands of annual fishing and boating trips. The area contains rich agri-' cultural land with approximately twenty-five thousand, five hundred acres of the total acreage taken in land use Classes I, II, III. Fort Loudoun, an eighteenth century English fortification, is located on the south bank of the river. This historic site will be saved from inundation but will lose its river setting. Historically, the river bottomland is also important as the ancestral homeland of the Cherokee Indians. Several early Indian villages have been identified, including Chota and Citico and considerable archeological work has been underway for the past few years. The Tellico Project is a multi-purpose water resource and regional development project. The reservoir and connecting canal with Fort Loudoun reservoir will serve to develop navigation, flood control, and electric power generation. Other direct benefits claimed by the project are recreational development, fish and wildlife use, water supply, shoreline development, and redevelopment. The project was first authorized by Congress on October 15, 1966. Construction on the concrete portion of the dam began March 7, 1967 and was completed^ on March 28, 1969. To date, S45,465,000 has been appropriated for the project, and over $35,000,000 has been spent. The current estimated project cost is 569,000,000. //. National Environmental Policy Act Our original order granting a preliminary injunction against TVA was based on its failure to comply with NEPA. On February 10, 1972, TVA filed with the Council on Environ' mental Quality the final impact statement covering the Tellico Project. Plaintiffs contend that this statement is still deficient under sections 102(2)(C) and (D) of NEPA. Further, they argue that TVA has not complied with 4 Environmental Defense Fund v. Tennessee V" ley Auth., 339 F.Supp. 806 [3 ERC 1553] (1°"" |
