Dillon, Stephen D.

English

University of New Mexico

Volume 17 
Issue 2 Spring 1977 
Spring 1977 
Report or Recommendation Necessary to Trigger EIS 
Stephen D. Dillon 
Recommended Citation 
Stephen D. Dillon, Report or Recommendation Necessary to Trigger EIS, 17 Nat. Resources J. 329 (1977). 
Available at: https://digitalrepository.unm.edu/nrj/vol17/iss2/11 
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REPORT OR RECOMMENDATION
NECESSARY TO TRIGGER EIS
ENVIRONMENTAL LAW-Scope of Environmental Impact State-
ments to include only that geographical area for which there has
been a report or recommendation on a proposal for major federal
action; Environmental Impact Statements due only when the recom-
mendation or report is made. Kleppe v. Sierra Club, 427 U.S. 390
(1976).
Congress, in 1969, passed the National Environmental Policy Act
(NEPA) "to create and maintain conditions under which man and
nature can exist in productive harmony, and fulfill the social, eco-
nomic, and other requirements of present and future generations of
Americans." ' The act, in order to encourage full and continuing
consideration of environmental factors in policy-making, requires a
detailed statement of environmental impact for "every recommenda-
tion or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environ-
ment .... -I This case concerns two key issues: the point during an
agency's formulation of a proposal that an impact statement must be
issued and the proper scope of that statement.
Plaintiffs (environmental groups) brought this action for declara-
tory and injunctive relief claiming that defendant federal agencies
could not allow further coal development in the Northern Great
Plains region without preparing a "comprehensive environmental
impact statement." The District Court granted summary judgment to
the defendants, concluding that the complaint stated no claim upon
which relief could be granted.
Before hearing oral arguments, the Court of Appeals granted an
injuncting pending appeal on the case.' One judge (in an opinion
foreshadowing his dissent on the merits) dissented, finding no ex-
plicit or implicit program encompassing the region in question. The
Court of Appeals reversed the summary judgment, finding that the
time was ripe for a regional impact statement since the federal agen-
cies "contemplated" a regional plan or program. The Court of
Appeals adopted a four-fold balancing test to determine the ripeness
1. National Environmental Policy Act of 1969, § 101(a), 42 U.S.C. § 4331 (1970).
2. National Environmental Policy Act of 1969, § 102(C), 42 U.S.C. § 4332(C) (1970).
3. Sierra Club v. Morton, 509 F.2d 533 (D.C. Cir. 1975).
NA TURAL RESOURCES JOURNAL
of the requirement to prepare impact statements, and finding the
record unclear as to two of the elements, remanded the case, instruc-
ting the agencies to define their role in the development of the
region. In the meantime, the Court of Appeals continued the injunc-
tion.
The Supreme Court, granting certiorari, found the test applied by
the Court of Appeals had no basis in the language or the legislative
history of NEPA. The Court, reading NEPA strictly, found that no
plan existed to develop the region or to encourage such development.
The Court relied upon the statement in the preface of an interim
report on coal development in the region issued after the Court of
Appeals opinion, that the alternatives presented were "for study and
comparison only; they do not represent specific plans or pro-
posals." 4 The Supreme Court, however, ignored the implementing
order for this report by the Secretary of the Interior:
It is important that we not lose this opportunity by engaging in
single purpose studies which are incapable of developing compre-
hensive information or by taking piecemeal actions which restrict
our future options.'
Moreover, the Supreme Court rejected the balancing test proposed
by the Court of Appeals because of its deviation from the strict
wording of NEPA and because it posed several practical problems.
First, to require preparation of impact statements prior to a formal
proposal would leave the affected agencies uncertain as to their pro-
cedural duties under NEPA. Secondly, such a requirement would
invite judicial involvement in the daily decision-making processes of
the agencies. Finally, the Court reasoned that this requirement would
result in preparation of many needless impact statements.
The Supreme Court addressed a question raised by the plaintiffs
which the appellate court did not reach, namely, whether an impact
statement for the entire region is required because the coal-related
projects in that region are intimately related. The underlying con-
sideration was whether the cumulative impact of several proposals,
each of which may be supported by its own impact statement, may
be such that the environmental impact must be studied in toto rather
than piecemeal. The Supreme Court agreed, in principal, that these
studies might be required in some circumstances. It held, however,
such determination on the part of an agency can be overturned only
if the agency is shown to have acted arbitrarily in its decision and
thus abused its discretion. The Supreme Court did not find that the
4. Kleppe v. Sierra Club, 427 U.S. 390, 404 (1976).
5. Sierra Club v. Morton, 514 F.2d 856, 863 (D.C. Cir. 1975).
330 [Vol. 17
ENVIRONMENTAL IMPACT STATEMENTS
agency decision, that the cumulative effect of coal mining in the
Northern Great Plains did not require a separate EIS, was arbitrary.
Justice Marshall, joined by Justice Brennan, strongly dissented on
the point at which an impact statement should be required. The
dissent focuses on the manifest intent of Congress that early "con-
sideration of environmental consequences through production of an
environmental impact statement is the whole point of NEPA ... "6
When the remedy may be brought only at the terminal point of the
proposal, the remedy is ineffectual in securing compliance with the
intent of early consideration and often merely leads to post-hoc
rationalizations of the proposal.
Thus, the dissent would approve of the four-part balancing test of
the appellate court "in the small number of cases where the need for
work to begin on an environmental impact statement is clear and the
agency violation blatant." 7 The dissent points out that, although the
test is not explicitly formulated in the statute, the statute was
vaguely drafted so as to catalyze development of a common law in
the area. Moreover, the practical objections against an early require-
ment of impact statements is challenged head-on in the dissent. First,
the requirement would not invite confusion in the agencies as to
their duties; those duties are clear and the requirement would merely
enforce compliance with those duties. Secondly, the possible inter-
vention of the courts in the decision-making of agencies would be
limited to the question of whether an impact statement was timely.
Also, since any right envisions litigation, the possibility of litigation
can hardly be objectionable. Finally, the test would not create need-
less impact statements since its proposal is to eliminate undesirable
proposals at an earlier stage than they would otherwise be elimi-
nated.
This case severely limits the ability to challenge agency action
affecting the environment. Except in very narrow circumstances
agency processes may not be challenged until they attain the status
of formal proposals or plans. Since much agency action is piecemeal
and the ultimate effect is not formalized into an overall plan, the
unarticulated cumulative effect may not be challenged, especially in
light of the holding that the scope of the required impact statements
is a matter of agency discretion.
STEPHEN D. DILLON
6. Kleppe v. Sierra Club, 427 U.S. 390, 417 (1976).
7. Id. at 418-19.
April 1977]


Report or Recommendation Necessary to Trigger EIS

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