The opinion of the court was delivered by: NEILL
Bonneville Power Administration (BPA) has filed an environmental impact statement (EIS) covering a proposed program to construct a series of power transmission lines extending from Little Goose and Lower Granite dams on the Lower Snake River to the Mid-Willamette Valley area of Oregon. As part of this energy redistribution program BPA has proposed a 500-kilowatt transmission line which will connect Lower Monumental Dam with a substation at Ashe, near Richland, Washington. BPA intends to construct this line along proposed route "D", which traverses dry and irrigated farmland owned by members of the plaintiff Columbia Basin Land Protection Association, an organization formed for the purpose of seeking an alternate route for the power line.
Having failed to persuade BPA to utilize their proposed route "E", which traverses a longer route across dry rangeland, plaintiffs seek injunctive and declaratory relief, based on the National Environmental Protection Act (NEPA), declaring BPA's impact statement inadequate and its decision to utilize route "D" arbitrary and capricious and an abuse of discretion.
Presently before the Court is plaintiffs' motion for a preliminary injunction.
The factors a Court must consider on a motion for preliminary injunction are:
(1) the significance of the threat of irreparable harm to plaintiff if the injunction is not granted;
(2) the state of the balance between this harm and the injury that granting the injunction could inflict on the defendant;
(3) the probability that plaintiff will succeed on the merits; and
11 Wright and Miller, Federal Practice and Procedure, § 2948 at 430-431. In the case at bench, however, the decisive factor is plaintiffs' likelihood of success on the merits. It is clear that plaintiffs will suffer irreparable harm if the project is permitted to proceed and later found to be in violation of NEPA, for testimony at the hearing established that construction is already behind schedule and will proceed swiftly unless enjoined.
Further, NEPA has effectively preempted this Court's authority to balance the relative harm to the parties that would result from an injunction or to determine the public interest, for the act
sets forth a declaration of national environmental policy and requires the Federal Government to use "all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" to achieve a wide range of environmental goals. Sec. 101, 42 U.S.C.A. § 4331.
Trout Unlimited v. Morton, 509 F.2d 1276, 1281 (9th Cir. 1974). See also, 42 U.S.C. § 4321, Daly v. Volpe, 376 F.Supp. 987, 992-993 (W.D.Wa.1974). Since NEPA mandates implementation of a congressionally defined policy "to the fullest extent possible", 42 U.S.C. § 4332, the relative harm to the parties that results from an injunction in furtherance of the goals of NEPA is not controlling. Cf. United States v. San Francisco, 310 U.S. 16, 60 S. Ct. 749, 84 L. Ed. 1050 (1940), quoted in Lathan v. Volpe, 455 F.2d 1111, 1116 (9th Cir. 1971) and Northside Tenants' Rights Coalition v. Volpe, 346 F.Supp. 244, 248-249 (E.D.Wis.1972). Accordingly, courts have not hesitated to enjoin projects proceeding in violation of NEPA, irrespective of the damage caused by such injunctions. Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971); Lathan v. Volpe, supra; Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 422-423 (2d Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972); Arlington Coalition v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 243 (1972); Lathan v. Volpe, 350 F.Supp. 262, 265 (W.D.Wash.1972). Therefore, the Court's grant or denial of plaintiffs' motion for a preliminary injunction depends on the probability that plaintiffs will succeed on the merits.
The Basis of Plaintiffs' Attack
Plaintiffs assert that BPA's choice of route "D" was arbitrary and capricious, constitutes an abuse of discretion, and was violative of procedure required by law. See 5 U.S.C. § 706(2)(A) and (D). Plaintiffs' attack is founded on defendants' alleged non-compliance with NEPA, 42 U.S.C. § 4321 et seq. Specifically, they assert that the EIS prepared for the project failed to comply with NEPA in the following particulars:
(1) that the EIS failed to incorporate a cost-benefit analysis comparing the alternatives to the route chosen, as required by 42 U.S.C. 4332(2)(B) and Guideline 1500.8(a)(4) of the Council on Environmental Quality (CEQ), Part 1500, Chapter 5, Title 40, "Protection of the Environment";
(2) that defendants failed to review and revise their procedures for preparation of EISs in consultation with CEQ as required by CEQ Guideline 1500.3(a);
(3) that defendants failed to fulfill their statutory duties under the National Historic Preservation Act of 1966, 16 U.S.C. 470f et seq., and Executive Order 11593;
(4) that defendants failed to correlate the project and its alternatives to BPA's larger projects as required by ...