REGION 10
REVIEWING
ENVIRONMENTAL
IMPACT
STATEMENTS
AT THE
REGIONAL
LEVEL
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REVIEWING ENVIRONMENTAL IMPACT STATEMENTS
AT THE
REGIONAL LEVEL
Appraisals, Evaluations, Comments
After 15 Months With NEPA
by
Hurlon C. Ray
Assistant Regional Administrator for Management
U.S. Environmental Protection Agency
Region X
1200 Sixth Avenue
Seattle, Washington 98101
April 1972
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REVIEWING ENVIRONMENTAL IMPACT STATEMENTS AT THE REGIONAL LEVEL
Region X, U.S. Environmental Protection Agency
Seattle, Washington
IMPLEMENTATION AND APPRAISAL IN REGION X
Fifteen months have passed since the President signed into
law the National Environmental Policy Act of 1969. There appears
to be universal agreement on only two aspects of the passage of
this legislation. First, that the National Environmental Policy
Act is the most significant environmental legislation to come
out of Congress; and that the ultimate impact of NEPA has not and
can not yet be seen.
Now is an appropriate time to discuss some of the concerns,
problems, issues, and opportunities in meeting the challenge of
implementing NEPA. It is timely because we have had an opportunity
to get our feet wet here in the Northwest, to acquaint ourselves
with some major issues of NEPA and to begin supplying answers for
some of the unresolved problems. A great awakening is taking
place in the Northwest regarding the environmental impacts of
Federal and State projects, activities, programs, and proposals
because we still have the chance to protect and preserve the gen-
erally prevailing good water and air quality.
We have reviewed approximately 250 environmental impact
statements to date, and we do not believe that a single EIS on
a significant project could be described as totally adequate.
Some major areas of needs for improvement are as follows:
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1. Agencies are not fully considering and applying the
policies expressed in all applicable local , State and Federal
laws. As an illustration, in the water quality field, we know
that there exists in most States a body of laws consisting of
local ordinances, State statutes and regulations or standards
promulgated thereunder and State-Federal water quality standards
(40 C.F.R. Part 120, 36 F.R. 22489, November 25, 1971) for inter-
state waters promulgated in compliance with the provisions of
Section 10 of the Federal Water Pollution Control Act. Accordingly,
it would appear prudent to set out in the environmental impact
statement whether the requirements contained in the body of local,
State and State-Federal water quality standards can be fully com-
plied with and if not, what requirements or criteria or guidelines
will be violated if the proposed activity or action requiring
the preparation of the impact statement is permitted to occur.
In short, an environmental impact statement, among other things,
can highlight or warn of a contemplated action that, if permitted,
will violate the policy of applicable local, State and Federal
laws, including regulations, standards, and criteria designed to
protect the environment.
In the near future it is anticipated that statewide im-
plementation plans under Section 110 of the Clean Air Act, as
amended, already submitted to the Administrator, EPA, will be
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approved or disapproved depending on whether or not each of the
State plans submitted by states pursuant to Section 110 of the
Clean Air Act met all of the requirements of Section 110 of the
Act and 40 C.F.R. Part 51. After an implementation plan is
approved by the Administrator, it will be prudent for the Agency
preparing an environmental impact statement to set forth, in
the statement, the applicable requirements in the implementation
plan and the impact of such requirements upon the proposed
activity or action. In this regard, we believe the impact statement
can serve to highlight or warn of contemplated actions that, if
permitted, will violate the requirements of the applicable plan of
implementation promulgated pursuant to Section 110 of the Clean Air
Act, as amended. While not applicable to the States in Federal
Region X, it is pointed out that 40 C.F.R. Part 52, 37 F.R. 2581,
February 3, 1971, reflects certain implementation plans already
approved by the Administrator of EPA.
2. The NEPA calls for a description of environmental impact
both primary and secondary. Most statements received in this office
fall short in their description of primary impacts and fail to even
mention the secondary impacts, such as commercial development, as
the result of the project. Secondary impacts , especially for highway
projects, may be more important than primary impacts.
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The discussions have been weak as to how projects constructed
today may effectively commit us to further developments with adverse
environmental effects in the future.
3. The NEPA calls for a discussion of alternatives in suffi-
cient detail so as to not foreclose choices other than the project
proposed. We have not reviewed a single EIS that adequately
discusses all alternatives. When alternatives are mentioned, they
are generally only engineering or dollar cost-oriented alternatives
rather than social, legislative, proper land use, or other types.
4. The NEPA calls for a discussion of short-term vs. long-term
relationships to man's environment. Particular attention is
called to the cumulative effects of several proposals on future
choices. We have yet to review an EIS that adequately describes
how an individual project fits into the long-range proposals.
Projects proposed for the Columbia and Snake River systems are
examples of complex systems where individual projects will have
synergistic effects. However, too many statements consider only
the beneficial economic impacts of the proposal and do not consider
environmental losses as negatives.
5. Most EIS's reviewed construe environmental considerations
too narrowly--within the framework of strict legislative mandates.
We must consider all environmental ramifications of present specific
authorities and adjust programs to protect the environment while
carrying out the legislative responsibilities.
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6. On occasion, the adverse environmental effects may dictate
that a Federal program should not be_ undertaken at^ all. Our
concerns regarding this question have been expressed in detail in
our reviews of some impact statements.
7. Proper attention and full consideration of all public and
private reviews, comments, statements, and testimonies have not been
adequately documented in all of the statements. Nevertheless, the
NEPA has moved the decision-making process of environmental actions
out into the light of public scrutiny. The rigorous self-analysis
and public and private review which Federal agencies must now
accomplish prior to initiating any major action significantly affect-
ing the environment has evoked a wide range of interest and reaction
in Region X.
The major reason for the effectiveness of the Act is that
it requires a full disclosure of potential governmental actions
which significantly affect the environment prior to irrevocable
decisions to proceed. Previous to this Act, it was always
difficult and often impossible for concerned agencies, groups,
or individuals, to get a handle on who was planning to do what
to whom. Not only must the proposing, licensing, or funding
Federal agency prepare a detailed description of how the proposed
action will affect the environment and submit this statement for
agency and public review, but also those reviewing agencies are
required by law to make their comments available for public re-
view.
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8. The preparation of EIS's has not really been used as an
effective vehicle for proper land use planning. In the areas of
land use planning at the local level, EIS's have a great potential
and can be used effectively.
It is Region X's aim to assist other government agencies in
developing an environmental ethic in their planning and action
programs, and to bring environmental values into Federal agency
decision making on a basis equal with those of economics and need.
The Region feels that one way this can be done is to point out in
EIS reviews those environmental relationships which were not given
adequate consideration during the planning stages. Particular
attention should be given to describing alternatives which may give
the same, or near the same, benefits, but with lesser environmental
cost. The EIS review in Region X is designed to bring multiple
disciplinary review of the impact statements received in the office.
Chart No. 1 shows how Region X handles the review of draft statements
and the various EPA disciplines involved in the preparation of our
statement. This is primarily an interdisciplinary approach and is
not, unfortunately, a complete ecological evaluation.
Statements received are routed to people with special expertise
in air quality, water quality, engineering, biology, land use
management, noise abatement, solid waste disposal, pesticides,
economics and radiation health. Each of the people having
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an interest in the proposal has an opportunity to comment. The
EIS program staff then incorporates the various comments from
these people and others into a meaningful interpretation as the
Region X EPA response. EPA's responses are available to all
agencies and to the public. We plan to have some professional
services contracts awarded in fiscal year 1973 to give us on-site
ecological views on EIS's and to develop new approaches and methods
to assist us in fulfilling the intent of NEPA.
RESPONSIBILITIES OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY
The U.S. Environmental Protection Agency does not have direct
authority to require impact statements from other Federal agencies.
However, the Administrator of EPA cannot carry out his legal require-
ments of Section 309 of the Clean Air Amendments of 1970 if statements
are not prepared. Section 309 of the Clean Air Amendments of 1970
states:
(a) The Administrator shall review and comment in writing on
the environmental impact of any. matter relating to duties and respon-
sibilities granted pursuant to this Act or other provisions of the
authority of the Administrator contained in any (1) legislation
proposed by any Federal department or agency, (2) newly authorized
Federal projects for construction and any major Federal agency action
(other than a project for construction) to which Section 102(2)(C)
of Public Law 91-190 applies, and (3) proposed regulations published
by any department or agency of the Federal government. Such written
comment shall be made public at the conclusion of any such review.
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(b) In the event the Administrator determines that any such
legislation, action, or regulation is unsatisfactory from the
standpoint of public health or welfare or environmental quality, he
shall publish his determination and the matter shall be referred to
the Council on Environmental Quality.
Section 102(2)(C) of NEPA requires all Federal agencies to
"include in every recommendation or report on proposals for legisla-
tion and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement "
"Prior to making any detailed statement, the responsible Federal
official shall consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise "
The CEQ Guidelines, dated April 23, 1971, list seventeen (17) types
of environmental impacts that EPA has jurisdiction over by law or
special expertise.
BACKGROUND INFORMATION
One of the first Congressional actions which considered environ-
mental factors was the Fish and Wildlife Coordination Act of 1958.
This legislation demanded that the Federal Bureau of Sport Fisheries
and Wildlife, and related State agencies, review plans for most
water resources projects. This action was followed by the Multiple
Use-Sustained Yield Act of 1960 which directed the Secretary of
Agriculture to develop and administer the National forests for
multiple use.
Another dimension in the environmental area was created during
the 1966 Congressional session when two statutes were enacted:
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(1) any Federal action affectinq a historic site must be reviewed
by the Advisory Council on Historic Preservation, and (2) the
Department of Transportation Secretary must avoid use of park,
recreation, wildlife, and historic sites land where avoidable
and, if not avoidable, the impact must be mitigated to the fullest
extent possible.
The next major legislative action came in 1969 with the passage
of NEPA. The framework was thus set for today's activities--
President Nixon consummated the Congressional action as his first
official act of 1970 with the signing of NEPA on January 1. Very
briefly, NEPA has three main parts:
-- establish national environmental goals,
-- Section 102 sets the basis for Environmental Impact State-
ments and is the action-forcing mechanism of the Act,
~ establish the Council on Environmental Quality (CEQ) , a
three member council akin to the Council of Economic
Advisors.
The Congressional purpose of this law is to build into the daily
processes of government a careful consideration of the environmental
changes which government actions bring about. This law contains a
self-policing feature called an Environmental impact Statement or
EIS. An EIS is a report describing the environmental effects which
could result from proposed action such as a highway, a dam, a bridge,
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an airport, a pipeline, issuance of a permit, activities funded by
the Federal government, legislative proposals, changes in agency
policies or operating procedures, and where controversy may arise
relating to a particular project. An EIS may be one page or volumes,
such as the one on the Alaska pipeline. Such a report must be in-
cluded in every recommendation or report on proposals for legisla-
tion and other major Federal actions significantly affecting the
quality of the human environment. It must also include a detailed
description of: (1) the environmental impact of the proposed action;
(2) any adverse environmental effects which cannot be avoided
should the proposal be implemented; (3) alternatives to the proposed
action; (4) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity, and (5) any irreversible and irretrievable commitments
of resources which would be involved in the proposed action should
it be implemented.
To implement this requirement, the President (via Executive
Order 11514; March 5, 1970) directed CEQ to issue guidelines for the
preparation of Environmental Impact Statements. This was done in
May 1970. The interim guidelines set forth government-wide policies
and procedures, and left the responsibility for establishing internal
procedures to the individual agencies. The interim guidelines were
superseded by the version published April 23, 1971.
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THE ROLE OF THE COURTS
Fortunately, some actions undertaken which disregard the tech-
nical and ecological requirements of preparation of detailed envi-
ronmental statements, or which disregard the Congressional mandate
to act in a stewardship capacity toward our natural resources, have
been halted by court actions initiated by citizen organizations.
More court actions are forthcoming.
The courts are becoming involved to a greater degree each day
in the interpretation of NEPA and it seems safe to assume that
judicial actions will play a major role in shaping the future
application of NEPA. Several major decisions have been handed
down by the courts in recent months. Probably the most noted case
to date is the Calvert Cliffs nuclear power plant proposal of the
Atomic Energy Commission. This decision has established that
submitting statements only if a project becomes controversial
does not carry out the intent of the law. The EIS's are to be
prepared where there is significant impact even if there is no
controversy.
Other recent judicial interpretations of environmental laws:
An environmental impact statement prepared by a Federal agency
must contain discussion p_f alternative courses of_ action even though
the agency lacks the power to adopt such alternatives or put them
into effect. This ruling came in the case of Natural Resources
Defense Council v. Morton, F.2nd (D.C. Cir. January
13, 1972). The case involved a proposal by the Department of the
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Interior to lease some 80 tracts of submerged lands, primarily off
eastern Louisiana. The Court agreed with the Department that only
reasonable alternatives need to be considered, but said:
"When the proposed action is an integral part of
a coordinated plan to deal with a broad problem,
the range of alternatives that must be evaluated
is broadened. While the Department of the
Interior does not have the authority to eliminate
or reduce oil import quotas, such action is within
the purview of both Congress and the President,
to whom the impact statement goes. The impact
statement is not only for the exposition of the
thinking of the agency, but also for the guidance
of these ultimate decision-makers, and must
provide them with the environmental effects of
both the proposal and the alternatives for
their consideration along with the various
other elements of the public interest."
Alternatives to the proposed action:
"This section shall describe the environmental
impacts, both beneficial and adverse, of the
various alternatives considered by and available
to the Department, specifically taking into
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account the alternative of no action. In
addition and where appropriate there will be
a brief discussion of possible alternatives
which are beyond the authority of the
Department."
In another Federal court case, it was held that an environ-
mental impact statement is required on appropriation requests,
even for ongoing projects. Each such request is a proposal for
legislation within the meaning of section 102(2)(C) of the Act.
(Environmental Defense Fund v. TVA, 40 LW 2498 (D-E.D Tenn.
Jan. 11, 1972). The Court referred to section 11 of the guidelines
promulgated April 23, 1971 (36 F.R. 7724), by the Council on
Environmental Quality, which says:
"To the maximum extent practicable the section
102(2)(C) procedure should be applied to further
major Federal actions having a significant
effect on the environment even though they arise
from projects or programs initiated prior to en-
actment of the Act on January 1, 1970. Where it
is not practicable to reassess the basic course
of action, it is still important that further
incremental major actions be shaped so as to
minimize adverse environmental consequences.
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It is also important in further action that
account be taken of environmental consequences
not fully evaluated at the outset of the
project or program."
The Atomic Energy Commission discovered, in the recent
court case of Calvert Cliffs' Coordinating Committee v. AEC_,
449 F.2d 1109 (D.C. Cir. 1971), that concern for water quality
cannot be left to the Environmental Protection Agency. Instead,
AEC was told by the court that it must independently examine
water quality problems, under the mandate of the National Environ-
mental Policy Act. Similarly, the Corps of Engineers was ordered,
in Kalur v. Resor, 40 LW 2391 (D-D.C. Dec. 21, 1971), to file a
detailed environmental impact statement in connection with issuance
of discharge permits under the Refuse Act and to make an independent
judgment regarding water quality, not deferring this to the expertise
of the Environmental Protection Agency. The ruling further banned
any permits for discharges into non-navigable streams.
At least one court has recognized and approved the "lead
agency" principle, in which only one agency, of several making
individual decisions about various aspects of a major action,
is required to prepare an environmental impact statement.
Upper Pecos Association v. Stans. 328 F. Supp. 332 (D-N.M. 1971).
In that case, the plaintiff attacked legality of a grant of
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funds by the Economic Development Administration for a road project
in New Mexico. The court said that a road could not be built
without grant of a right-of-way permit by the Forest Service,
which was the lead agency and had prepared a detailed impact
statement. Under these circumstances, the court said, "the
directives of the National Environmental Policy Act and the
recommendations issued pursuant thereto have been satisfied
to date." The court explicitly distinguished the case from
those in which only a single agency was involved.
In another case, a Federal court has held that a licensing
agency must prepare its own impact statement and cannot merely
adopt a statement prepared by an applicant. The ruling came in
an attack upon procedures followed by the Federal Power Commission
after the Power Authority to the State of New York (PASNY) applied
to the FPC for authorization to construct a high voltage trans-
mission line. In accordance with FPC regulations, PASNY filed
an environmental impact statement covering the proposed line and
two possible alternate routings. The Commission circulated the
PASNY statement to Federal agencies for comment. The Second
Circuit Court of Appeals, in Greene County Planning Board v. FPC,
F.2d , 40 LW 2521 (1972), termed this an abdication by the
FPC of its responsibility and criticized the Commission for being
willing to serve merely as an umpire. The FPC was directed to
prepare and circulate its own draft statement.
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Brooks v. Volpe, 319 F. Supp. 90 (1970), 329 F. Supp. 118
(1971), among other things, stood for the proposition that NEPA
did not require the Secretary of Transportation to file an envi-
ronmental impact statement before proceeding with construction of
a highway whose location was administratively determined in
1967, since NEPA was held not t£ be_ retroactive. The referenced
decisions involving Brooks v. Volpe were reversed in Brooks v.
Volpe, No. 71-1908, in a decision rendered on March 2, 1972 by
the United States Court of Appeals for the Ninth Circuit. The
defendants were ordered to stop any activity "which disturbs or
defaces the land" in the area. None of these activities will be
allowed to continue until the defendants have "fully complied"
with provisions of the National Environmental Policy Act.
The judge's findings and conclusions include a ruling that
the defendants must include in an environmental impact statement
the ecological effects the construction will have on nearby Kimball
Creek Marsh.
See Exhibit A for additional court actions pertaining to NEPA.
(102 Monitor, Vol. 1, No. 12).
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THE ROLE OF THE STATES
The States have responded to NEPA with varying reactions.
Some have used the environmental impact statement process to
their advantage and actively commented on those impact statements
within their boundaries, while others have played a very minor
role. Four States (Montana, California, Washington, and Delaware)
and the Commonwealth of Puerto Rico have enacted legislation
similar to NEPA and more are expected to follow suit. State agencies,
which may be given the opportunity to review or comment on a prepared
draft environmental statement, should point out the existence of
requirements contained in local, State and Federal laws, including
any regulations or standards promulgated thereunder, that will be
violated by the activity or action, if permitted, that is the
subject matter of the draft environmental impact statement.
SUMMARY
The EIS requirement is young. It is the most wide-ranging
and comprehensive pollution control program yet made by the Congress.
It is powerful, but is a costly tool and must be protected and
used judiciously. We are only beginning to experience the rami-
fications, complaints, protests, demands for amendments to NEPA,
Congressional Hearings, GAO audits, proposed new legislation and
court actions. Nevertheless, NEPA is here to stay. Agencies,
both initiating and commenting, are quick to report that not all
is rosy. Some agencies are not producing good statements and
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some have not produced any statements a_t al 1. Many problems have
been eliminated; some are on the verge of being overcome. We
cannot ignore the impact that NEPA has created, wishing or con-
vinced that everything will turn out all right and that NEPA is
a fly-by-night "boondoggle" that will fade away and spare ourselves
the truama of future shock. John Gardner said, in 1964:
"A common stratagem of those who wish to escape
the swirling currents of change is to stand on
high moral ground."
We saw a bold and vigorous National response in the 1930's
to the needs for improved farming practices to reduce erosion and
improve crop production. The Nation dedicated its tremendous
capability for change into a form of revolution that brought the
country's agricultural capacity to its fullest potential. The
same sort of revolution is needed today for the environment in
its broadest aspects and implementation of NEPA. The EIS is one
tool not yet used as it must be if we are to preserve quality of
life for future generations.
We encourage public participation in the Environmental
Impact Statement process. The comments should be substantive
and above all objective. Th'e EIS requirement should be a "full
disclosure" mechanism and place the governmental decision-making
process in full view long before the final project decisions have
been made. This makes possible a public record for both the
initiating agency and those that comment on the statement.
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We are asking that Federal, State, County, and City admini-
strators and planners listen to the sound of the times and accept
the role of stewardship of our natural and social resources, both
in spirit as well as in the letter of the NEPA. It is a massive
challenge--to make engineering expertise the means of developing
a quality life. It is a challenge worthy of the highest dedication
--it is a challenge which must be met if we are to provide ourselves
and our children a livable world.
Conviction, coordination, integrity, participation, and
partnership—there can be no silent partners, no secrets, no
deals in this program, and each of us must participate in areas
of joint concern to our fullest capabi lities tp_ stop polluting
and exploiting activities. EIS's are a consistent, potent,
hard-hitting "Federal tool" with muscle to mobilize behind the
punch to insure environmental cleanup and proper land-use
planning.
"The Prudent men should judge of future events by
what has taken place in the past and what is taking
place in the present."
Miguel de Cervantes (1547-1616)
(From: Population Resources
Environment. (1970))
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CHART NO I
PROCEDURES FOR REVIEWING IMPACT STATEMENTS
U S ENVIRONMENTAL PROTECTION AGENCY
REGION X
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APPENDIX A
UNITED STATES COURTS OF APPEALS
Calvert Cliffs' Coordinating Comm. v. AEC, 2 ERC 1779,
1 ELR 20346 (D.C. Cir. 7/23/71). The court found the AEC's
rules for implementing NEPA in licensing nuclear power plants
invalid in four respects: (1) the rules failed to require
hearing boards to consider environmental factors unless raised
by the regulatory staff or outside persons; (2) they excluded
nonradiological environmental issues in all cases where the
notice of hearing was published before 3/4/71; (3) they pro-
hibited reconsideration of water quality impacts where a
certification of compliance with State standards had been
obtained; and (4) they failed to provide for environmental
review of cases in which a construction permit had been granted
prior to NEPA's effective date but the time was not yet ripe
for granting an operating license.
Committee for Nuclear Responsibility v. Seaborq, 3 ERC 1126,
1210, 1256 (D.C. Cir. 10/5/71, 10/28/71, 11/3/71). The court
reversed a summary judgment for defendants, holding that
plaintiffs had alleged a legally sufficient claim that the
AEC's 102 statement on the underground nuclear test Cannikin
was deficient under NEPA. The court later upheld the district
judge's order requiring release of Government documents, which
were not part of the 102 statement, discussing environmental
aspects of the proposed test. However, the court refused to
stay the test pendente lite. Finally, after release of the
documents, the court refused on national security grounds to
delay the test -- without deciding whether NEPA had been
satisfied. (The Supreme Court later upheld this refusal.)
Ely v. Velde, 3 ERC 1280 (4th Cir. 11/8/71). The court,
in reversing a district court decision, held that the Law
Enforcement Assistance Administration must prepare a 102
statement on the portion of a block grant to the State of
Virginia that will be used to construct a prison facility
in a historic area.
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Lathan v. Volpe, 3 ERC 1362 (9th Cir. 11/15/71). The
court held that citizens were entitled to a preliminary injunction
against further acquisition of property by the State of
Washington for Interstate 90 in Seattle until Federal officials
prepared a 102 statement.
National Helium Corp. v. Morton. 3 ERC 1129, 1 ELR 20478
(10th Cir. 10/4/71).The court upheld a preliminary injunction
against the Interior Department's cancellation of contracts
to buy helium, on the basis of noncompliance with NEPA.
Pennsylvania Environmental Council v. Bartlett, 3 ERC 1421
(3d Cir. 12/1/71).The court upheld a district court ruling that
a 102 statement was not required for a Federal-aid highway project
for which all Federal approvals were given and all contracts
awarded prior to enactment of NEPA.
San Antonio Conservation Society v. Texas Highway Depart-
ment, 2 ERC 1872, 1 ELR 20379 (5th Cir. 8/5/71). The court
stayed construction of a highway through a park in San Antonio,
on the basis of noncompliance with NEPA and other laws. The
court held that the "segments" of the highway adjacent to the
park must be considered together with the park "segment" in
the application of these laws. It further held that, since the
highway had been approved for Federal funding, the State could
not defeat the application of the Federal laws by proceeding
without Federal funds.
Scenic Hudson Preservation Conf. v. FPC, 3 ERC 1232
(2d Cir. 10/22/71). The court upheld the FPC's grant of a
license for the Storm King pumped storage power plant. The
court found that the FPC had considered all relevant factors
as required by NEPA, and that its findings were supported by
substantial evidence.
Thermal Ecology Must Be Preserved v. AEC, 2 ERC 1379,
1 ELR 20078 (D.C. Cir. 7/20/70).The court refused to grant
an order restraining AEC hearings on a permit application
for a nuclear power plant near South Haven, Michigan.
Citizen groups claimed the hearings were illegal under NEPA
because the AEC was refusing to consider the dangers of
thermal pollution or of cumulative radiation. However, the
court said that this question could be raised only on review
of a final AEC order.
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Thermal Ecology Must Be Preserved v. AEC. 2 ERC 1405
(7th Cir. 8/24/70)7 The court refused to grant an order
restraining AEC hearings on a permit application for a
nuclear power plant near South Haven, Michigan. The court
relied on the D.C. Circuit ruling of the same name.
Upper Pecos Assn. v. Stans, 2 ERC 1418 (10th Cir. 12/7/71).
The court affirmed a district court ruling that the Economic
Development Administration did not have to prepare a 102 state-
ment on a grant for road construction, since the Forest Service
was the lead agency in developing the road and had prepared
a statement on it. Although the Forest Service's 102 statement
was not prepared until after the EDA had made an offer of funds,
the court held that this timing satisfied NEPA because the
Forest Service still had full authority to grant or deny a
right-of-way, and the application for EDA funds was made prior
to enactment of NEPA.
West Virginia Highlands Conservancy v. Island Creek
Coal Co.. 2 ERC 1422. 1 ELR 20160 (4th Cir. 4/6/71). The
court upheld the standing of a citizen group under NEPA and
the Wilderness Act to challenge the Forest Service's permission
of private timber cutting and road construction in Monongahela
National Forest. The citizen group charged that a 102 state-
ment should have been prepared, and that the area was protected
by the Wilderness Act until studied for wilderness character.
Without deciding these claims, the court found them sufficiently
strong to justify a preliminary injunction pending further
proceedings in the district court.
Zabel v. Tabb, 1 ERC 1449, 1 ELR 20023 (5th Cir.
7/16/70), cert, denied, 39 U.S.L.W. 3360 (2/22/71).
The court held that the Army Corps of Engineers has
authority to deny a dredge-and-fill permit under 33 U.S.C.
403 on ecological grounds, basing its holding in part
on NEPA.
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UNITED STATES DISTRICT COURTS
Arlington Coalition on Transportation v. Volpe, 3 ERC 1138
(E.D. Va. 10/8/71).The court dismissed a suit to enjoin
construction of Interstate 66 through Arlington. It held that
NEPA was inapplicable to portions of the highway approved
before January 1, 1970, and found that a 102 statement would
be prepared before approval or additional work. The decision
was reversed by the 4th Circuit, in an unreported opinion.
Berkson v. Morton, 3 ERC 1121 (D. Md. 10/1/71). The
court issued a 10-day temporary restraining order against
construction in the C&O Canal National Historic Park without
compliance with NEPA and other Federal statutes. This order
has subsequently been extended.
Brooks v. Volpe, 2 ERC 1004, 1571, 1 ELR 20045, 20286
(W.D. Wash. 9/25/70, 4/6/71). The court held that a 102
statement was not required for an Interstate highway segment
whose location had been approved in 1967. The court upheld
the standing of the individual plaintiffs to bring the suit,
but denied the standing of the environmental groups.
Bucklein v. Volpe. 2 ERC 1082, 1 ELR 20043 (N.D. Cal.
10/29/70).The court refused an injunction against disburse-
ment of Federal emergency funds for a road relocation project.
The plaintiff challenged the location of the road as an abuse
of discretion, arguing that an alternative location was environ-
mentally preferable. The court found that there had been "ample
consideration" of environmental factors, and stated that it is
unlikely that the policy declaration in Section 101 of NEPA
was intended to create "court enforcible duties."
Businessmen for the Public Interest v. Resor, 3 ERC 1216
(N.D. 111. 10/14/71 ). The court ruled that citizens could not
sue to challenge the application of the Refuse Act permit
program to Lake Michigan until the Corps of Engineers proposed
to issue a permit under the program. However, the court went
on to uphold the regulations implementing the program, relying
in part on NEPA.
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Citizens to Preserve Foster Park v. Volpe, 3 ERC 1031,
1 ELR 20389 (N.D. Ind. 8/18/71).The court denied a preliminary
injunction against further work on a federally assisted high-
way. The court found that a 102 statement prepared in June
1970 complied with NEPA "to the extent possible" even though
it did not comply with guidelines and procedures issued before
that date. The court stressed that the park affected by the
highway was already as "torn up" as it would be from further
construction.
Coastal Petroleum Co. v. Secretary of the Army. 1 ERC
1475 (S.D. Fla. 7/1/70). The court held, on the basis of the
District Court ruling (later reversed) in Zabel v. Tabb. that
the Corps of Engineers has no authority to deny a permit under
33 U.S.C. 403 on other than navigational grounds. However, the
court refused to order the Corps to grant a permit for limestone
mining in Lake Okeechobee because of environmental danger and
because other remedies were available to protect the applicant's
financial interests. NEPA was discussed in supplemental briefs
after the trial, but the court found it "not to be applicable."
The court later reversed itself, without opinion, on the basis
of the 5th Circuit's decision in Zabel.
Daly v. Volpe. 2 ERC 1506, 1 ELR 20242 (E.D. Wash. 4/9/71).
Local residents sought an injunction against construction of an
interstate highway segment near North Bend, Washington, asserting
that the Department of Transportation had not complied with the
requirements of NEPA. The segment, on which planning and
hearings had begun before enactment of NEPA, was approved on
November 30, 1970. At that time a draft environmental state-
ment had been prepared, but agency comments were not received
or a final statement prepared until after the approval. The
court held that the Department of Transportation had sub-
stantially complied with NEPA in approving the segment, since
the plans had been coordinated with many groups before approval,
and agency procedures for formal circulation of draft environ-
mental statements were still being developed.
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Delaware v. Pennsylvania New York Central Transp. Co.,
2 ERC 1355, 1 ELR 20106 (D. Del. 2/24/71).The court granted
standing to a State and private persons to challenge the Corps
of Engineers' issuance of permits to Penn Central for a dike
and fill operation along the foreshore of the Delaware River.
Plaintiffs allege, inter alia, that the Corps violated NEPA
by giving inadequate consideration to the environmental effects
of the operation. However, consideration of plaintiffs' claims
will be delayed pending Penn Central's bankruptcy proceedings
in another Federal court.
Dorothy Thomas Foundation v. Hardin, 1 ERC 1679 (W.D.
N.C. 8/31/70).The court denied a preliminary injunction
against timber cutting in a National Forest, finding that
plaintiffs had not proven that the Federal defendants had
failed to consider the factors required by NEPA and the
Multiple Use and Sustained Yield Act.
Echo Park Residents Corrm. v. Romney, 3 ERC 1255 (C.D.
Cal. 5/11/71).The court upheld the finding by HUD that
Federal assistance for a 66-unit apartment project would not
significantly affect the environment and did not need a 102
statement.
Elliot v. Volpe, 2 ERC 1498, 1 ELR 20243 (D. Mass.
4/20/71).Plaintiffs sued to halt construction of interstate
highway segments through Somerville, Massachusetts, asserting
that the Department of Transportation had not complied with the
requirements of NEPA. The court denied an injunction, on the
ground that the planning and location of the segments had been
completed and approved in 1966, and substantial construction
had taken place before the enactment of NEPA. The court
concluded that it would be an unwarranted "retroactive"
application of NEPA to require a total halt in construction
while the NEPA procedures were followed for the remaining
action on the segments.
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Ely v. Velde, 2 ERC 1185, 1 ELR 20082 (E.D. Va. 1/22/71).
In a suit by neighboring property owners to contest a Federal
grant to a State for construction of a prison facility, the court
held that NEPA did not require the Federal granting agency to
consider the environmental impact of the facility. The court
stated that the Safe Streets Act of 1968 imposed a mandatory
duty to award the funds, which was not modified by enactment
of the "discretionary" provisions of NEPA in 1970. The decision
was later reversed by the 4th Circuit.
Environmental Defense Fund, Inc. v. Corps of Engineers,
1 ELR 20130, 2 ERC 1260 (E.D. Ark. 2/19/71). Plaintiff
environmental groups sued to enjoin further construction of
the Gill ham Dam, on which the Corps has prepared an environ-
mental statement under section 102(2)(C). The court upheld
plaintiffs' standing and held that NEPA was applicable even
though the project was partially constructed prior to January
1, 1970. On the merits, the court rejected plaintiffs' argument
that section 101 creates an enforceable duty not to undertake
environmentally damaging projects. However, it found the
environmental statement legally inadequate and enjoined further
construction until the Corps has complied with sections 102(2)(A),
(B), (C), (D) of NEPA.
Environmental Defense Fund, Inc. v. Corps of Engineers,
2 ERC 1173, 1797, 1 ELR 20079, 20366 (D. D.C. 1/27/71, 7/27/71).
The court granted a preliminary injunction against further
construction of the Cross-Florida Barge Canal. The court held
that a 102 statement was required for further actions even
though the project was begun before January 1, 1970. The
case was later consolidated with others involving the canal
and transferred to M.D. Fla. for pretrial proceedings.
Environmental Defense Fund, Inc. v. Corps of Engineers,
3 ERC 1085, 1 ELR 20466 (D. D.C. 9/21/71).The court granted
a preliminary injunction against construction of the Tennessee-
Tombigbee Waterway. It ruled that the plaintiffs had made a
sufficient showing of noncompliance with NEPA to warrant an
injunction pending trial.
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Environmental Defense Fund, Inc. v. Hardin, 2 ERC 1424,
1 ELR 20207 (D. D.C. 4/14/71).The court ruled that the
Department of Agriculture's fire ant control program, involving
dissemination of the pesticide Mi rex, was a major action
requiring an environmental statement under Section 102(2) (C)
of NEPA. However, it refused a preliminary injunction against
the program, on the ground that the Department had performed
adequate studies of the program's environmental effects and
had prepared an environmental statement discussing those effects
in sufficient detail to satisfy all procedural requirements
of Section 102(2)(C).
Gibson v. Ruckelshaus, 3 ERC 1028, 1 ELR 20337 (E.D. Tex.
3/1/7iy!The court granted an injunction against condemnation
proceedings or Federal financing for a sewage treatment facility,
on the ground that the Environmental Protection Agency had
failed to comply with NEPA and the Federal Water Pollution
Control Act. The 5th Ci r. later reversed and remanded the
case on the basis of the plaintiff's refusal to cooperate with
the court. (8/9/71 , 3 ERC 1370.)
Goose Hollow Foothills League v. Romney, 3 ERC 1087
(D. Ore. 9/9/71).The court enjoined construction of a
Federally assisted college high-rise housing project for
failure to prepare a 102 statement. However, the court
stayed its injunction for 90 days to permit the filing of
the statement. The injunction was made effective on 12/8/71,
3 ERC 1457.
Harrisburg Coalition Against Ruining the Environment
v. Volpe. 2 ERC 1671. 1 ELR 20237 (M.D. Pa. 5/12/71). Iff
a suit to enjoin construction of Interstate 81 through a
park, the court found that the Secretary of Transportation
had not made the findings required by Section 4 (f) of the DOT
Act. The case was remanded for new findings by the Secretary
and for preparation of a 102 statement in accordance with the
CEQ guidelines.
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Investment Syndicates, Inc. v. Richmond, 1 ERC 1713,
1 ELR 20044 (D. Ore. 10/27/70).A landowner sued to enjoin
construction of a power line across his land on the basis of
the failure of Bonneville Power Administration to prepare an
environmental statement under section 102(2)(C). The court held
that a statement was not required, noting that the project had
been approved and funded and nearly half of the necessary
easements purchased before January 1, 1970, and that evidence
of the proposed right of way was visible on plaintiff's land
when he purchased it.
Izaak Walton League v. Macchia, 2 ERC 1661 (D. N.J.
6/16/71).The court upheld the plaintiff's standing to sue
private developers and the Corps of Engineers to stop the
developers from dredging in navigable waters under a Corps
permit. The court also rejected the defenses of sovereign
immunity and laches, and continued the case for trial. The
suit challenges the validity of the permit under NEPA and
other Federal laws.
Izaak Walton League v. Schlesinqer, 3 ERC 1453 (D. D.C.
12/13/71).Thecourt granted a preliminary injunction against
the AEC's issuance of a partial operating license for the Quad
Cities nuclear reactor pending completion of the NEPA review
of the application for a full operating license. The court held
that the partial license was itself a major action requiring a
102 statement.
Izaak Walton League v. St. Clair, 1 ERC 1401 (D. Minn.
6/1/7017The court denied the Government's motion to dismiss
a suit brought to invalidate private mineral claims in the
Boundary Waters Canoe Area (a Wilderness Area). The court
upheld the plaintiff's standing to sue and ruled that the
suit was not barred by sovereign immunity.
Kalur v. Resor, 3 ERC 1485 (D. D.C. 12/21/71). In an
action to review the Corps of Engineers' regulations governing
the Refuse Act permit program, the court found the regulations
invalid in two respects: (1) the regulations permitted the
issuance of permits for discharges into nonnavigable tributaries
of navigable waters; and (2) they failed to require 102 state-
ments for the issuance of permits. The court enjoined further
issuance of permits under the program.
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LaRaza Unida v. Volpe, 3 ERC 1306 (N.D. Cal. 11/8/71).
The court granted a preliminary injunction against construction
or property acquisition for a Federally assisted highway
in Alameda County. The court based its order on violations
of other Federal statutes, leaving a claimed violation of
NEPA for consideration at trial.
Lever Bros. Co. v. FTC. 2 ERC 1648, 1 ELR 20185 (D. Me.
4/19/71).Detergent manufacturers sought an injunction for-
bidding the FTC to hold hearings on a proposed rule to require
special labeling of deteregents, including a pollution warning
on detergents containing phosphorus. The manufacturers claimed
that the hearings were illegal because the FTC had not prepared
an environmental impact statement under NEPA on the proposed
rule. The district court denied an injunction on the ground
that the legality of the FTC's procedures could be reviewed
only on review of the final adoption of a rule. The manufacturers
then moved in the First Circuit Court of Appeals for an
injunction pending appeal, which was denied by a single judge
on the ground that as long as an environmental statement will
be released prior to adoption of a rule, the manufacturers will
not suffer sufficient hardship to justify court review prior to
such adoption. (4/20/71, 2 ERC 1651, 1 ELR 20328.) The appeal was
apparently dropped before hearing in the full court of appeals.
Lloyd Harbor Study Group. Inc. v. Seaborg, 2 ERC 1380,
1 ELR 20188 (E.D. N.Y. 4/2/71).A citizen group sought a
court order under NEPA requiring the AEC to consider non-
radiological environmental effects in its hearings on a permit
application for a nuclear power plant in Shoreham, Long Island.
The AEC had refused to receive evidence of such effects. The
court dismissed the suit on the ground that this refusal could
be reviewed only by a Court of Appeals after entry of a final
AEC order.
McQueary v. Laird. 3 ERC 1185 (D. Colo. 10/2/71). In a
suit to enjoin the Defense Department from storing chemical
and biological warfare agents at Rocky Mountain Arsenal,
the court held that NEPA did not create a substantive right
to prevent the storage. The court held that the decision to
store the agents was within the Department's discretion.
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Monroe County Conservation Assn. v. Hansen, 1 ELR 20362,
3 ERC 1208 (W.D. N.Y. 6/1/71).The court denied a preliminary
injunction against Corps of Engineers dumping of dredge spoil
into Lake Ontario, saying that under the circumstances no law,
including NEPA, required an immediate halt to the dumping.
Morningside-Lenox Park Assn. v. Volpe, 3 ERC 1327 (N.D.
Ga. 11/22/71).The court preliminarily enjoined further
work on Interstate 485 in Atlanta, holding that a 102 state-
ment was required for further actions even though location
approval was given before January 1, 1970.
National Helium Corp. v. Morton, 2 ERC 1372, 1 ELR 20157
(D. Kan. 3/27/71).The court held that the Secretary of the
Interior's cancellation of contracts for Federal purchase of
helium constituted a "major action" requiring an environmental
impact statement under Section 102(2)(C) of NEPA, and that
the contractor had standing to seek compliance with this re-
quirement. The court issued a preliminary injunction against
termination of the contracts until the Secretary complied with
NEPA. The injunction was subsequently affirmed by the 10th Circuit,
Nolop v. Volpe, 3 ERC 1338 (D. S.D. 11/11/71). The court
upheld the standing of minor students at U.S.D. to sue as a
class (through a guardian ad litem) to prevent construction
through the campus of a Federally funded highway. It granted
a preliminary injunction against further construction until
a 102 statement is prepared.
Northwest Area Welfare Rights Qrgn. v. Volpe, 2 ERC 1704,
1 ELR 20186 (E.D. Wash. 12/3/70).The court denied a preliminary
injunction against further development of a highway project in
Spokane. The court held that a claim of violation of NEPA was
premature, since the only Federal participation was funding of
an area transportation study.
NRDC v. Morton, 3 ERC 1473 (D. D.C. 12/16/71). The
court preliminarily enjoined a proposed sale of leases for
oil and gas extraction on the Outer Continental Shelf off
eastern Louisiana. The court held that a substantial question
had been raised about the legal sufficiency of Interior's
102 statement, particularly in the scope of alternative actions
discussed.
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NRDC v. TVA, 3 ERC 1468 (S.D. N.Y. 12/8/71). The court
denied the defendants' motion to dismiss, which was premised
on these grounds: (1) improper service of process; (2) improper
venue; (3) lack of jurisdiction; and (4) failure to join in-
dispensable parties. It granted the motion of the Audubon
Society to intervene as a plaintiff.
Pennsylvania Environmental Council v. Bartlett, 1 ERC
1271 (M.D. Pa. 4/30/70).The court held that a conservation
group had standing to challenge the Secretary of Transportation's
approval of a State secondary highway relocation project, but
that NEPA did not apply to a project for which planning and the
award of a contract preceded January 1, 1970. In dictum, the
court also expressed doubt that NEPA requires the Secretary
to study the environmental impact of State secondary highway
projects before approving them. The decision was later
affirmed by the 3d Circuit.
Petterson v. Resor, 3 ERC 1170 (D. Ore. 10/4/71). The
court upheld citizens' standing to challenge a Corps of
Engineers dredge-and fill permit for the expansion of the
Portland airport. However, it ruled that the permit was
not one for which congressional approval was required under
33 U.S.C. 401. A NEPA violation was claimed, but the court
only mentioned it without dealing with it.
Sierra Club v. Hardin, 2 ERC 1385, 1 ELR 20161 (D. Alaska
3/25/71).The court upheld the standing of conservation groups
to challenge the Forest Service's sale of timber in Tongass
National Forest as violative of NEPA and other statutes. However,
the court found that the Forest Service's reliance on the report
of a panel of conservationists complied with NEPA "to the
fullest extent possible" in view of the advanced stage of the
transaction at the time of NEPA's passage. It found the claims
under other statutes to be barred by laches. The decision
has been appealed.
Sierra Club v. Laird. 1 ELR 20085 (D. Ariz. 6/23/70).
Plaintiff conservation groups sued to enjoin the Corps
of Engineers from proceeding with a channel-clearing
project on the Gila River, which had been authorized prior
to January 1, 1970. The court granted a preliminary injunction
on the basis of the Corps' failure to comply with section
102(2)(C), Executive Order 11514, and paragraph 11 of CEQ's
Interim Guidelines.
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State Committee to Stop Sanguine v. Laird. 317 F. Supp.
665 (W.D. Wis. 1970).In a suit by conservationists to enjoin
the operation of a signal-system test facility for noncompliance
with section 102(2)(E) (requiring inter alia, that Federal
agencies support international environmental initiatives),
the court refused an injunction because of plaintiffs' failure
to make specific allegations of noncompliance.
Texas Committee v. Resor, 1 ELR 20466 (E.D. Tex. 6/29/71).
The court granted a preliminary injunction against work on the
Cooper Dam project until the Corps of Engineers prepares a 102
statement.
Texas Committee v. United States. 1 ERC 1303 (W.D. Tex.
2/5/7Q). dismissed as moot (5th Cir. 8/25/70). The court
granted a preliminary injunction to prevent Farmers Home
Administration from financing a golf-course project that
allegedly threatened important wildlife habitat. The project
had been approved, but not commenced, before January 1, 1970.
The basis for the injunction was that FHA had not considered
the environmental impact as required by NEPA. The case was
dismissed as moot when the golf course was located elsewhere.
United States v. Brookhaven. 2 ERC 1761, 1 ELR 20377
(E.D. N.Y. 7/2/71).The court granted a preliminary injunction
against dredging by a municipality in navigable waters without
a Corps of Engineers permit. It held that the Corps, which
had issued a permit in 1967, was not required to grant a
subsequent permit, since the law had changed with the passage
of NEPA.
United States v. Joseph G. Moretti. Inc.. 1 ELR 20443,
3 ERC 1052 (S.D. Fla. 9/2/71).The court issued an injunction
against further private dredging in Florida Bay without a
Corps of Engineers permit. The injunction also required
restoration of the defendant's past damage to the bay. The
court relied on NEPA to justify considering ecological damage.
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United States v. 247.37 Acres. 3 ERC 1099 (S.D. Ohio
9/9/7TT In a suit to condemn land for the Corps of Engineers'
East Fork Reservoir project, the court refused to grant summary
judgment for the Government. The court held that failure to
comply with NEPA was a valid defense to the condemnation suit.
Upper Pecos Assn. v. Stans, 2 ERC 1614, 1 ELR 20228
D. N.M. 6/1/71).The court upheld the plaintiff's standing
to challenge an Economic Development Administration grant for
construction of a road. However, the court held that a 102
statement was not required on the grant because the Forest
Service, which was the lead agency in developing the road,
had prepared a 102 statement on it. The decision was affirmed
on appeal.
Wilderness Society v. Morton, 1 ERC 1335, 1 ELR 20042
(D. D.C. 4/23/70). In a suit by conservation groups, the
court enjoined the issuance by the Secretary of the Interior
of a permit for a road across Federal lands on the basis,
among others, of the Secretary's failure to prepare a state-
ment under section 102(2)(C) discussing the environmental
impact of both the road and the related Trans-Alaska Pipeline.
Environmental Groups v. SCS. In a major test case that
could affect hundreds of projects, environment groups have
won a court injunction requiring an environmental impact study
on a government-aided stream-channelization project.
Stream channelization is a widespread practice, often
conducted under the auspices of the U.S. Soil Conservation
Service, to widen, deepen or straighten stream beds for better
control of water flow.
Environment groups took their case to a federal district
court in North Carolina last November after the Soil Conservation
Service decided it did not have to prepare an environmental impact
statement for the Chi cod Creek Watershed Project in Pitt and
Beaufort counties, North Carolina.
In a decision dated March 15, District Judge John D. Larkins
ruled that an environmental impact statement is required and
must be submitted within 30 days.
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He issued an injunction blocking federal action on the
project until the statement is filed with the President's
Council on Environmental Quality and is circulated for comment
in compliance with the National Environmental Policy Act of
1969.
Summarizing the objections of the Soil Conservation
Service, Larkins said, "Its primary concern in this action
seems to be that if it has to issue an impact statement for
this project, it will have to do the same for many other
ongoing projects."
The service has more than 1,800 watershed projects
under consideration or in planning.
GOVERNMENT PRINTING OFFICE: 1972— 79S-764/ 13-Reglon No. 10
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