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BROOKS v. VOLPE

August 4, 1972

Richard J. BROOKS a citizen, et al., Plaintiffs,
v.
John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendants


Beeks, Chief Judge.


The opinion of the court was delivered by: BEEKS

BEEKS, Chief Judge.

 I. Facts and Procedural History

 The highway project under consideration is a segment of I-90, part of the national system of interstate and defense highways stretching from Seattle to Boston, and funded by 90% federal funds. *fn1" The project contemplates the addition of three lanes to an existing seven-lane highway through Snoqualmie Pass in the Cascade Mountain Range, about 45 miles east of Seattle. The project lies within the Snoqualmie National Forest, and will provide a major transportation route between Seattle, points on the east side of the Cascades, and several major skiing and recreational facilities near Snoqualmie Pass. Trees have already been cleared on a large part of the project, and grading has started; seven major structures are under way, $14 million of construction is under contract, and a substantial percentage of the work has been completed. *fn2"

 The complaint, filed August 18, 1970, alleges that defendants failed to comply with 23 U.S.C. § 138, and 42 U.S.C. §§ 4321 et seq. This court held that, since the highway would not physically traverse any portion of Denny Creek Campground, there would be no "use" of that land within the meaning of 23 U.S.C. § 138, and that 42 U.S.C. §§ 4321 et seq., which became effective January 1, 1970, was inapplicable to the 1967 location approval. *fn3" The court of appeals reversed on both points, and remanded the case for further review. *fn4" Defendants have moved for an order of compliance, on the basis of two exhibits filed with the court at a hearing held June 12, 1972. *fn5" The motion is denied.

 II. The Impact Statement

 The National Environmental Policy Act of 1969 *fn6" (NEPA) provides, in part:

 
§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts
 
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 chapter, 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 decisionmaking which may have a [sic] impact on man's environment;
 
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking 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 shall 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, and shall accompany the proposal through the existing agency review processes;
 
(D) study, develop, and describe appropriate alternatives to recommended 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 subchapter II of this chapter. *fn7"

 There are essentially two functions served by the preparation and distribution of the impact statement described in § 4332(2)(C) supra : (1) to provide evidence that the decision-making process required by NEPA was in fact accomplished; and (2) to give the decision-makers who are removed from the initial decision sufficient data from which to make their own decisions. *fn8" The court's only function is to see that agencies obey the Congressional command to assemble the necessary information, perceive and weigh the alternatives, and articulate in writing the reasons for the choices made. *fn9"

 As originally drafted, NEPA authorized the Secretary of the Interior to conduct research, accumulate and analyze data, keep tabs on federal projects affecting the environment, and act as a clearinghouse of environmental information. There was no action-forcing provision, and no requirement that all agencies conduct research or file impact statements. *fn10" After extensive hearings, the bill was amended by the committee to require that all agencies include in every recommendation or report on major federal actions "a finding by the responsible official" that he had considered the environmental consequences of the proposal. *fn11" Federal agencies were to be expressly authorized to allocate funds for "research, studies and surveys related to ecological systems and the quality of the environment." *fn12"

 The House substitute was a substantially watered down version; the Senate adamantly refused to accept the House version without the "action-forcing" features. The Senate appointed a conference committee, which was given the task of retaining the essential features of the Senate version. In so doing, the Senate authorized the conferees to press for a requirement of a "detailed statement" rather than merely a "finding," which would have made it easier for administrators to relegate environmental considerations to one more set of forms for signature. *fn13"

 The bill produced by the conferees adopted in large part the Senate version, including the action-forcing provisions. Compliance was made mandatory "unless the existing law applicable to the agency's operations expressly prohibits [full compliance] or makes full compliance with one of the directives impossible." *fn14"

 
. . . The most important provisions of [former] Title II relating to research and data gathering were retained by the Conference Committee in Section 102 of Title I and in Sections 204 and 205 of Title II of the Conference Report. *fn15"

 The Council on Environmental Quality (CEQ) was to provide general research of broad scope, *fn16" while each agency was left to provide the research necessary to indicate the environmental impact of its own proposed projects. *fn17" While impact statements are to be filed with CEQ for comment, *fn18" such comment is advisory only. The major task of the CEQ is to keep the President informed of how well federal programs are meeting NEPA requirements. *fn19"

 NEPA must be complied with "to the fullest extent possible." *fn20"

 
Mere administrative difficulty does not interpose such flexibility into the requirements of NEPA as to undercut the duty of compliance "to the fullest extent possible." But if this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research -- and time -- available to meet the Nation's needs are not infinite.
 
. . .
 
. . . So long as the officials and agencies have taken the "hard look" at environmental consequences mandated by Congress, the court does not seek to impose unreasonable extremes or to interject itself within the area of discretion of the executive as to the choice of the action to be taken. *fn21"

 Compliance with NEPA is not established merely by the filing of an impact statement in the form and by the procedure outlined by the statute. *fn22" In Natural Resources Defense Council, et al. v. Morton, et al., *fn23" for example, the Department of the Interior filed a 67-page impact statement in relation to a proposed lease of oil lands off the shore of Louisiana. The trial court issued an injunction, and the Court of Appeals for the District of Columbia Circuit denied a motion for summary reversal. It held that other alternatives, including the use of atomic energy and prorationing of gas, must be discussed, since the breadth of inquiry must be appropriate to the scope of the project. In other words, NEPA allows major federal action

 
only following complete awareness on the part of the actor of the environmental consequences of his action and following his having taken the steps required by the Act. *fn24"

 Federal agencies

 
. . . must not only observe the prescribed procedural requirements and actually take account of the factors specified, but . . . must also make a sufficiently detailed disclosure so that, in the event of a later challenge to the agency's procedure, the courts will not be left to guess whether the requirements of . . . NEPA have been obeyed. *fn25"

 The requirement that the statement be detailed places a heavy burden on government agencies to gather for and include in the impact statement enough information to show that compliance has been genuine, not perfunctory. ...


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