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APPENDIX 4

EXECUTIVE OFFICE OF THE PRESIDENT,
COUNCIL ON ENVIRONMENTAL QUALITY,
Washington, D.C.

REPORTED JUDICIAL DECISIONS INVOLVING THE NATIONAL ENVIRONMENTAL POLICY
ACT OF 1969 (P.L. 91-190, 42 U.S.C. §§ 4321-47), THROUGH FEBRUARY 15, 1972

UNITED STATES SUPREME COURT

Committee for Nuclear Responsibility v. Seaborg, 3 ERC 1276 (11/6/71) (Douglas, Brennan, and Marshall, JJ., dissenting). The court denied an injunction, pending action on a petition for certiorari, against the underground nuclear test Cannikin. Justice Douglas' dissent discusses possible defects in the AEC's 102 statement.

San Antonio Conservation Society v. Texas Highway Dept., 2 ERC 1083, 1 ELR 20069 (12/21/70) (Black, Douglas, Brennan, JJ., dissenting from denial of cert.). The dissenting Justices stated that NEPA does apply to Federally funded State highway projects, and that the Supreme Court should have taken for review, prior to decision in Court of Appeals, this dispute concerning a highway project for which an environmental statement under section 102(2) (C) was not prepared. There has been a further decision in the 5th Circuit referred to below.

2606.84 Acres v. United States, 2 ERC 1623, 1 ELR 20155 (4/19/71) (Douglas, Black, JJ., dissenting from denial of cert.). A landowner challenged the taking of his land for a Corps of Engineers project on the ground that the project had been expanded so radically since its authorization by Congress that a new authorization was required. The Fifth Circuit rejected this claim, and the Supreme Court denied certiorari. The dissenting Justices argued that the case warranted review partially to determine whether the Corps had complied with NEPA with respect to future work on the project.

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 prohibited 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. Seaborg, 3 ERC 1126, 1210, 1256 (D.C. Cir. 10/5/71, 10/28/71, 11/3/71). The court reversed a summary judg ment 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.

Greene County Planning Bd. v. FPC, 3 ERC 1595, 2, ELR 20017 (2d Cir. 1/17/72). On a petition to review an FPC authorization for the Galboa-Leeds transmission line, the court found the FPC's procedures for implementing NEPA deficient. The court ruled that the FPC staff must itself prepare a draft 102 statement, prior to the public hearing, rather than treating as the draft statement the environmental report prepared by the applicant. However, the court refused to

disturb the authorizations for two other transmission lines, despite noncompliance with NEPA, because the petitioners had failed to object to those authorizations or to seek court review of them within the time allowed by statute. Finally, the court declined to require the FPC or the applicant to pay the expenses incurred by the petitioners in challenging the authorizations.

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.

McQueary v. Laird, 3 ERC 1185, 1 ELR 20607 (10th Cir. 10/2/71). In a suit to enjoin the Defense Department from storing chemical and biological warfare agents at Rocky Mountain Arsenal, the court affirmed the district court's dismissal. It held that NEPA did not create a substantive right to prevent the storage. The court said that the decision to store the agents was within the Department's discretion.

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.

NRDC v. Morton, 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1/13/72). The court affirmed the district court's ruling that the Interior Department's 102 statement on a proposed sale of leases for oil and gas extraction on the Outer Continental Shelf was legally inadequate. The court held that the 102 statement was required to discuss the environmental effects of reasonable alternative courses of action, including courses of action not within the authority of the Department to adopt. The court stressed that the requirement of discusion of alternatives is subject to a construction of "reasonableness" and does not "impose unreasonable extremes." 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 Department, 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. 7/20/20). 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.

Thermal Ecology Must Be Preserved v. AEC, 2 ERC 1405 (7th Cir. 8/24/70). 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 statement 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 statement 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.

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 4th Circuit has granted a preliminary injunction pending appeal.

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 disbursement 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 environmentally 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. III. 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. Citizens for Reid State Park v. Laird, 3 ERC 1580 (D. Me. 1/21/72). The court held that a 102 statement was not required for a practice amphibious landing to be performed by the Navy in a state park. On reviewing the evidence, the court concluded that the record supported the Navy's finding that the landing would have no significant environmental effects.

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 highway. 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.

Citizens to Preserve Overton Park v. Volpe, 3 ERC 1510, 2 ELR 20061 (W. D. Tenn. 1/5/72). On remand from the Supreme Court, the court found that the Secretary of Transportation had not fully complied wtih Section 4(f) of the Department of Transportation Act in approving the construction of Interstate 40 through Overton Park in Memphis. The case was remanded to the Secretary for a new determination. Despite the fact that the location approval was to be reconsidered, the court held that compliance with NEPA was not required since the original location approval occurred prior to NEPA's enactment.

Cohen v. Price Commission, 3 ERC 1548 (S.D. N.Y. 1/24/72). The court denied a preliminary injunction against the Price Commission's approval of a 5-cent fare increase for New York City subway and bus lines. The plaintiffs claimed that NEPA required the Price Commission to prepare a 102 statement because the fare increase would increase automobile use. However, the court expressed doubt that

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the Price Commission was required to prepare 102 statements, since it was a temporary agency created to act with great haste. The court was also of the view that the plaintiffs, who did not make a submission to the Commission, had failed to exhaust their administrative remedies.

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 statement 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 substantially 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 environmental statements were still being developed.

Davis v. Morton, 3 ERC 1546, 2 ELR 20003 (D. N. Mex. 10/22/71). The court held that the Secretary of the Interior's approval of leases for Indian trust lands was not a "major Federal action" under NEPA and did not require preparation of a 102 statement.

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 NPA and the Multiple Use and Sustained Yield Act.

Echo Park Residents Comm. 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.

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 Gillham Dam, on which the Corps has prepared an environmental statement under section 102(2) (C). The court upheld plaintiff's 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. The case has since been transferred to the N.D. Mississippi, without opinion.

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 Mirex, 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).

Environmental Defense Fund, Inc. v. TVA, 3 ERC 1553, 2 ELR 20044 (E.D. Tenn. 1/11/72). The court granted a preliminary injunction against further work on the Tellico Dam project, because TVA had not yet filed a final 102 statement. TVA had filed a draft statement, but claimed that a statement was not required since construction had begun prior to enactment of NEPA. The court held that a statement was required because major portions of the construction remained and TVA was continuing to seek annual appropriations for the project.

Gibson v. Ruckelshaus, 3 ERC 1028, 1 ELR 20337 (E.D. Tex. 3/1/71). The court granted an injunction against condemnation proceedings of 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 Cir. 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 injunetion 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). In 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.

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

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