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Show NATIONAL HELIUM CG Cite as 4S8 F ,.ve conceive of the review of the Secretary's action as being strictly limited to compliance with the requirement of the ,-qvironmental impact statement. This, :if course, includes consideration given to the statement by the Secretary, for if he~faiied to consider it his act:-on woulQ A :\jsume arbitrariness and capriciousnes/;. [8,9] Efforts to-enjoin the Secretary from terminating the contracts for aa 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. [10] Next we consider whether the Secretary and the Department fulfilled the requirements of § 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. THE STANDARD TO BE APPLIED. s The specific procedural requirements of NEPA are delineated in 42 U.S.C. § 4332. Section 4332(2) (A)-(H) jmposes specific _p£ocedural .duties on^Teideral 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 environmetal effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, RPOBATIOK" 7. MORTOH .2d 095 (1073) (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. The trial court employed the "arbitrary and capricious" standard of § 708 of the APA.4 This sets aside the action if it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with lav/. The trial court purportedly relied on the Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (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 /\ct of 1968. In assessing the adequacy of the impact statement, wa 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 arbitrary and capricious standard was, in our view, erroneous. J The better reasoned decisions have re-quired 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,146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), the court added to the good faith standard by saying that the agency 4. National Helium Company, et al. v. Morton, 3G1 F.Supp. 78, filed June 11, 1972 (D.Kanaas). 436F.2d-63y* |
