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. Schlesinger, 3 ERC 1453 (D. D.C. 12/13/71). The court 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. However, the court defused to consider the plaintiffs' claim that the AEC should have prepared a 102 statement on its rules implementing NPEA, holding that that question could be reviewed only in a U.S. court of appeals. The AEC has appealed the decision.

Izaak Walton League v. St. Clair, 1 ERC 1401 (D. Minn. 6/1/70). The 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 statements for the issuance of permits. The court enjoined further issuance of permits under the program. The decision has been appealed.

Kings County Economic Community Development Assn. v. Hardin, 3 ERC 1605 (N.D. Cal. 7/21/71). This suit challenges under NEPA and the Federal Water Pollution Control Act the continued payment of Federal farm subsidies without the issuance by the Department of Agriculture of guidelines to control water pollution from pesticide and fertilizer use. The court ruled that venue was not proper in a district where none of the plaintiffs lived and none of the challenged payments occurred. It transferred the case to the E.D. California.

La Raza Unida v. Volpe, 3 ERC 1306, 1 ELR 20542 (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 forbidding the FTC to hold hearings on a proposed rule to require special labeling of detergents, including a pollution warning on detergents containing phosphorus. The maufacturers 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.

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.

Monroe County Conservation Council v. Volpe, 2 ELR 20015 (W.D. N.Y. 12/30/71). The court granted summary judgment for the defendants in a suit against the construction of the Rochester Outer Loop highway through a por

tion of Genessee Valley Park. The court found that both NEPA and Section 4(f) of the Department of Transportation Act had been complied with.

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 statement 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 requirement. 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.

New York City v. United States, 3 ERC 1570 (E.D. N.Y. 1/20/72). A threejudge district court disapproved an ICC order authorizing a railroad to abandon unprofitable New York Harbor operations. The court held that a 102 statement was necessary, since abandonment would probably have adverse environmental impacts through an increase in the use of trucks. The case was remanded to the ICC for preparation of a statement.

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.

Northeast Area Welfare Rights Orgn. 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, 2 ELR 20028 (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. The decision was affirmed on appeal.

NRDC v. Morton, 3 ERC 1623 (D. D.C. 2/1/72). The court was asked to dissolve its preliminary injunction against a proposed sale of leases on the Outer Continental Shelf, on the basis of an addendum to the Interior Department's 102 statement supplementing the discussion of alternative courses of action in the original statement. The court held that the statement as supplemented did not comply with Section 102 (2) (C), because the addendum had not been circulated to other agencies for additional comment.

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 indispensable 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, 2 ELR 20013 (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.

Scherr v. Volpe, 3 ERC 1586, 1588 (W.D. Wis. 12/7/71, 12/29/71). The court upheld the standing of the citizen plaintiffs to challenge the construction of U.S. 16 from Oconomowoc to Pewaukee, Wisconsin, on which the Department

of Transportation had not prepared a 102 statement. The court granted a preliminary injunction against further development of the project. On the defendants' motion to suspend the injunction, the court held that an agency does not have discretion to determine whether a project requires a 102 statement, Rather, on a challenge, the court construes the standards "major action” and "significantly affecting" to environment, and applies them to the particular project. The court refused to suspend the injunction.

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 channelclearing 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. The decision has been appealed.

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. 2/5/70), 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.

United States v. 247.37 Acres, 3 ERC 1099 (S.D. Ohio 9/9/71). 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 statement under section 102 (2) (C) discussing the environmental impact of both the road and the related Trans-Alaska Pipeline.

Williamette Heights Neighborhood Assn. v. Volpe, 3 ERC 1520, 2 ELR 20043 (D. Ore. 12/3/71). The court held that a 102 statement was required for con

struction of a segment of Interstate 505 near Portland. Although the Department of Transportation had indicated "tacit approval" of the location of the segment in 1964, formal location approval was not requested until April 1969 and was not given until after the effective dates of NEPA and the revised DOT regulations (PPM 20-8) requiring location an ddesign hearings. The court enjoined work on 1-505 pending compliance with these provisions, but refused to enjoin completion of exit ramps approved prior to enactment of NEPA.

APPENDIX 5

BRIEFING PAPER-HEARINGS ON THE NATIONAL ENVIRONMENTAL POLICY ACT

BACKGROUND

The National Environmental Policy Act became law on January 1, 1970. The effective date for the provisions of the Act was the date of enactment. There was no grandfather provision for any activity or program subject to its provisions. Section 101 of the Act establishes a broad set of national policies.

"Sec. 101. (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment."

Section 102, 104 and 105 of the Act place affirmative burdens on Federal agencies.

"Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal government shall

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act,

which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on(i) the environmental impact of the proposed action.

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(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. Prior to making any detailed statement, the responsible Federal official should consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes: (D) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States. lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality established by title II of this Act.

Sec. 104. Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency.

Sec. 105. The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies."

The implementation of the Act by the Council on Environmental Quality, the Environmental Protection Agency, and other Federal agencies has prompted considerable litigation and much more is in the offing.

Following enactment, the Council on Environmental Quality issued interim guidelines (which have subsequently been reissued as final guidelines) to agencies of the Federal government for implementation of NEPA. In addition, many of the agencies including EPA, AEC, FPC, Interior have published regulations for implementation of NEPA.

With increasing frequency the Federal courts have been asked to review Federal agency compliance with the National Environmental Policy Act. To date, there have been 17 U.S. Court of Appeal decisions, 50 U.S. District Court decisions, and 3 decisions of the Supreme Court (in which dissenting opinions cited NEPA) involving NEPA. Primarily, these decisions go to the issue of compliance by Federal agencies with the National Environmental Policy Act other environmental protection legislation (primarily the Clean Air Act and the Federal Water Pollution Control Act, and the 1899 Refuse Act). The Act, the regulations