COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

UNITED STATES

United States - EIA, Duty to Consider Options

SIERRA CLUB ET. AL v. COLEMAN AND TIEMANN

14 ILM p.1425 (1975) & 15 ILM p.l417 (1976) UNITED STATES: DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRYANT, J.

Introduction

The construction of a highway to link the Pan American Highway system of South America with the Inter-American Highway was authorized by Congress in 1970. The actual administration of the project was left to the Secretaly of Transportation. Thereafter the Department of Transportation and the Federal Highway Administration (FHWA) took the preliminary steps for the construction of a highway through Panama and Columbia. In view of the extensive environmental impact of the proposed highway, which was known as the Darien Gap Highway, the FHWA prepared and issued an Environmental Impact Assessment in order to comply with the provisions of the NEPA. The Sierra Club and three other environmental organisations, instituted action to obtain a preliminary injunction, restraining the FHWA from taking any further action on the project, on the basis that the preparation and issurance of the Assessment satisfied neither the procedural nor the substantive requirements of the NEPA. A preliminary injunction was accordingly granted.

Subsequently, the defendants prepared a Final Environmental Impact Statement (FEIS), in order to comply with the provisions of the NEPA and to proceed with the proposed construction of the Darien Gap Highway. Upon a motion filed by the plaintiffs, on the basis that the FEIS is defective in certain critical areas, the preliminary injunction was extended.

As a result of the above decision and also several other similar cases, a memorandum entitled "Memorandum on the Application of the EIS Requirement to Environmental Impacts Abroad of Major Federal Actions" was issued by the Council on Environmental Quality (CEQ).

Legislative Framework

Section 102 (2) (c) of the National Environmental Policy Act (NEPA).

Held

Preliminary Injunction

The Court issued the injunction prayed for on the grounds, inter alia, that the FHWA failed to circulate the Final Environmental Impact Assessment report or a draft thereof, to the Environmental Protection Agency for its comments, as required by the provisions of the NEPA. The Court held that "There is no question but that the environmental effects of a major highway construction is within the expertise of EPS, and that agency might well have had valuable comments which could have affected FHWA 'S judgment as the Assessment was considered in the decision-making process in the selection of the highway's route". In fact, when the EPA finally learned of the existence of an Assessment, it drew attention to a major deficiency viz. the lack of discussion in the Assessment, regarding the domestic consequences of the ransmission of "foot and mouth disease" or "aftosa " into the United States along the proposed highway, and the Court cited this major deficiency as one of the principal reasons, which warranted the issuance of an injunction.

The Court also said that the discussion of possible alternatives is imperative in the Assessment envisaged under the NEPA. As such, the failure of the Assessment in the instant case, to discuss possible alternatives to the route that has been chosen for the highway, is a defect, which is of a substantive nature. Except for a fleeting reference to the "- no build " alternative without any discussion of its relative environmental impact, the bulk of the section titled "Alternatives To The Proposed Project " is devoted to an analysis of why the proposed shorter route, the Atrato route is preferable to the longer route, the Choco route, from an engineering and cost perspective. A discussion of the relative environmental impact of other land routes, such as the Choco route is indispensable, though the latter route might cost more or be less feasible from an engineering perspective. This will also enable a complete analysis of the impact of the proposed highway on the lives of the Choco and Cuna Indians, whose "cultural extinction" has been predicted in a superficial manner.

Accordingly, the Court by its order dated 17th October, 1975 issued a preliminary injunction restraining the defendants from taking any action whatsoever, in furtherance of the construction of the Darien Gap Highway, pending final hearing and disposition of the action or until the defendants have taken all necessary action to comply fully with the substantive and procedural requirements of the National Environmental Policy Act.

Extension of the Preliminary Injunction

In allowing the plaintiffs' motion for extension of the preliminary injunction, the Court held that the assessment of the defendants', as contained in the FEIAS, still constituted inadequate compliance with the provisions of the NEPA.

Cases Cited

Atchison, Topeka, and Santa Fe Railway Co. v. Callaway 382 F. Supp. 610, 623 (D. D. C. 1974)
Lathan v. Volpe 455 F. 2d 1111, 1116 (9th Cir., 1971)
Keith -v. Volpe 352 F. Supp. 1324, 1349 ( C. D. Cal., 1972 )
United States v. City and County of San Francisco 310 U. S. 16, 60 S. Ct. 749 (1940)
Calvert Cliffs' Coordinating Committee, Inc. v. United States Stomic Energy Commission 146 U. S. App. D. C.33 at 39, 449f.2d llO9, at 1115(1971)
Jones v. District of Columbia Redevelopment Agency 162 U.S. App. D.C. 366 at 376, 499 F.2d 502 at 512 9 1974)
Scientists Institute For Public Information v. Atomic Energy Commission 481 F.2d 1079 (C.A.D.C.,1973)
National Resources Defense Council v. Morton 458 F.2d 827 (C.A.D.C.,1972)
Carolina Environmental Study Group v. United States S 10 F.2d 796 (C.A.D.C.,1975)
Warm Springs Task Force v. Gribble 6 ERC 1737 (1974)
Wilderness Society v. Morton 463 G. 2d 1261 (D. C. Cir.1972)
Sierra Club v. Coleman 405 F. Supp. 53 (D. D. C.1975)
City of Davis v. Coleman 521 F. 2d 661 (9th Cir.,1975)