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

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1086 481 FEDERAL REPORTER, 2d SERIES But directly undercutting this approach, the Commission's brief quotes approv­ingly from testimony of Chairman Schlesinger: "We think that it would be a big mistake to attempt to freight on a sin­gle environmental report on a single facility, all of these broader considera­tions; [but] the public has a right to know, concerned citizens have the right to know, what the broader fu­ture implications may be of the cumu­lative impact of a number of such fa­cilities, rather than looking at each facility microscopically." 22 In this context the Commission assures us that it is now preparing "a compre­hensive environmental survey of the LMFBR, analyzing the direct impact of the potential plants and the broader im­plications of the program." 23 But while this "environmental survey" would ap­parently discuss many of the same kinds of issues as would a NEPA statement, it remains unclear, even after oral argu­ment, whether the Commission proposes to issue it as a NEPA statement and whether the Commission will observe NEPA's requirements as to contents or the procedures to be followed for draft­ing and issuing the statement. Elsewhere in its brief, however, the Commission seems to concede that at some point in time a NEPA statement for the entire program would be re­quired. "Most assuredly, the AEC is not declaring its intention to never file a detailed statement for the overall program." 24 In this context the Com­mission argues that the program has not yet reached that stage where a NEPA statement on the overall program would be either feasible or meaningful, "[T]he remote and speculative nature of the project" 23 and the fact that it "re­mains uncrystallized in form and unde­termined in application,"26 lead the Commission to conclude that any de­tailed analysis at the present time of the overall program, its environmental ef­fects, and alternatives thereto would re­quire the Commission "to look into the crystal ball" 27 and "would be meaning­less in terms of content." 28 The remainder of this section will fo­cus on the Commission's first line of de­fense- the' applicability of NEPA to technology research and development programs and the possibility of substi­tuting an "environmental survey" for a NEPA statement. The following section will discuss the Commission's second ar­gument- the timing of a NEPA state­ment on the overall program.29 [2] The Commission takes an un­necessarily crabbed approach to NEPA able information, see note 78 infra, and its evaluation of alternative energy op­tions is extremely superficial, even to un­tutored eyes. The Commission itself ap­pears to concede that it has not done the best job possible, since it has already initiated another thorough study of the overall environmental consequences of the breeder program. See text at p. 1097 infra. 22. NEPA Hearings, supra note 20, at 98- 99. 23. Brief for appellees at 14. See also text at p. 1097 infra. 24. Brief for appellees at 36 (emphasis in original). 25. Ibid. 26. Id. at 34. 27. Id. at 12, quoting NEPA Hearings, su-pra note 20, at 99. 28. Id. at 34. 29. Before turning to the merits, we here consider two preliminary defenses raised by the AEC relating to whether this case presents a justiciable case or controversy and whether appellant organization has standing to maintain this action. In ar­guing that the case is nonjusticiable, the AEC mischaracterizes the issues before us. We are not called upon to decide whether it would be wiser for Congress to appropriate funds for some promising energy technology other than the LMFBR. Certainly if a NEPA state­ment is prepared for the overall program, Congress would hopefully consider the AEC's analysis in deciding whether to appropriate more funds for the program. But this does not make the question before us political in nature. Nor is it significant that this case con­cerns an overall agency program rather