Kleppe v. Sierra Club – Oral Argument – April 28, 1976

Media for Kleppe v. Sierra Club

Audio Transcription for Opinion Announcement – June 28, 1976 in Kleppe v. Sierra Club

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Warren E. Burger:

We will hear arguments next in 75-552, Secretary of Interior against Sierra Club and the consolidated case.

Mr. Randolph, you may proceed when you are ready.

Randolph:

Mr. Chief Justice and may it please the Court.

This case, which is here on writs of Certiorari to the United States Court of Appeals for the District of Columbia, arises under the National Environmental Policy Act which I referred to as NEPA throughout my argument, this provides that an environmental impact statement shall be included in every report or recommendation on proposals for major Federal actions significantly affecting the environment.

The Federal petitioners violated the provision I have just quoted, according to the respondents in this case.

Because they have not prepared one of massive impact statement covering all Federal activities relating to coal mining, in an area respondents called the Northern Great Plains region.

That is a 90,000 square mile area describing their complaint as comprising North Eastern Wyoming, Eastern Montana, Western North Dakota and Western South Dakota.

I have had distributed to the Court two maps, both of these maps were taken from material on the record.

I do not plan to refer to them now, later in my argument, I will refer to them directly. On cross motions for summary judgment, the District Court ruled in favor of the government in the interveners in this case.

Among the Court’s many findings of fact at this stage and on remand for supplementing the record, two findings of fact, we believe are crucial and dispositive in this case.

First, that the Northern Great Plains region, defined by respondents is not “an entity, region or area, considered by the Federal Government for the purposes of any Federal program, project or action, second, that there is no existing or proposed Federal Regional program, plan, project or other regional Federal action for developing coal in the region respondents have defined”.

The District Court with respect to these two findings of fact could not have found otherwise, our evidence was to this effect in the District Court and respondents with out offering any other contrary evidence not only conceded that no plan or program for development of their Northern Great Plains region existed, they stressed that fact, they argued to the District Court, they argued to the Court of Appeals that NEPA compelled the government to adopt such regional plan or proposal, an argument that in this Court they now have extensively dropped.

I will mention briefly a number of the other District Courts findings of fact and then proceed in my argument and these were findings taken both from the original proceeding in the District Court and from the remand.

One, that the government has prepared and will continue to prepare environmental impact statements for group of mines or individual mines within the area described in respondents complaint.

These impact statements, the Court found to be, at page 114 (a) and 115 (a) of the petition appendix.

These statements the Court found to be comprehensive and noted that they assess the cumulative impacts of coal mining and related activities.

One of the statements, impact statements that the District Court considered is the six volume Eastern Powder River Basin impact statement and through the benefit of the Court, this is before the Court, but, I brought a copy in so the Court might see what an impact statement looks like, all six volumes, they — it covers an area in Wyoming of approximately, I cannot lift it, I would but[Laughter]

(Inaudible).

Randolph:

This covers an area in North Eastern Wyoming of approximately 7500 square miles, which is about the size of the State of New Jersey, the focus is on four mining plans and a railroad right away.

As I said, the District Court found that that statement was comprehensive and had such cumulative impacts of coal mining.

The District Court found in addition that since of 1970, the government, the Federal government in cooperation with States Industry, private groups, other individuals, local governments had conducted various coal related studies in the Western States.

This was studied only, I must emphasis.

One of these which was primarily mentioned in the briefs and also in opinions below is the Northern Great Plains Resources Program, the NGPRP is sometimes referred, which was began in 1972.

This was a joint investigation by the States of Wyoming, Montana, Nebraska, North Dakota and South Dakota that collected data on geology, minerals, including coal, and mainly coal.

Air quality, social and economic conditions and so forth and analyzed all this material on the basis of possible development scenarios, the study or the program as I should refer to proposed no regional plan, it suggested no preferred development program, it suggested no development program whatsoever, it was not designed to the District Court so found.

The District Court also found that since 1973, the Secretary of Interior had continued in effect but was a virtual moratorium a private coal development, a new private coal development in the federal coal reserves throughout the Country.

During this period at a national impact statement or as it sometimes referred to a coal programmatic was prepared.

This assessed, the old procedures that the secretary had utilize under the mineral leasing act and formulated a new process applicable Nationwide for implementing that same Act.

On the basis of this evidence the District Court found that the government had taken action under NEPA, but it was National action in scope.

The action was on a National basis as to the region, that we are discussing in this case, the District Court found as I stressed before, there was no special plan or program for that reason as such and certainly no regional action.

Randolph:

The Court of Appeals reversed with one judge dissenting.

The Court majority accepted the law records findings of fact but held that the government was and I used the Court’s word contemplating a regional program.

The relevance of this apparently was that under the lower Courts, Court of Appeals view an impact statement under the statute NEPA must be issued well and advance of any report on proposals for major Federal action, there ago contemplation could trigger the impact statement requirement, must stress though that the Court of Appeals did not hold that the government had yet violated NEPA.

But only that it would if it kept following the course that the Court thought it was following and in light of this the Court issued a remand order, instructed the government to announce whether it would do one impact statement covering this 90,000 square mile area.

In January, this Court staid the Court of Appeals injunction which had prevented the Secretary of Interior from taking action with respect to the four pending mining plans analyzed in the Eastern Powder River Basin impact statement.

Thereafter in February of this year, the secretary approved those four mining plans.

As I stated at the outset we think that the District Court’s decision on this case is correct and we think that the District Courts findings affect in this case.

The government has completed a national impact statement covering a coal leasing policies nationwide.

It includes in analysis the four States here it includes an analysis of every State where Federal land is located.

It has completed this massive impact statements covering the Eastern Powder River Basin in Wyoming.

That statement has not been challenged in any Court, in fact the statement covers three quarters of all the economically recoverable coal by strip-mining in the area that respondents defined as the Northern Great Plains region.

William H. Rehnquist:

Does the government concede that it was required by the act to file a national impact statement?

Randolph:

Yes.

It was a national program and it was major Federal action but it was Nationwide.

It is been filed — that government also has issued impact statements for individual mines, for clusters of mines and in fact will continue to do so.

The argument here however is that none of this is sufficient, that an impact statement must be done for an area smaller than the United States but larger than the Eastern Powder River Basin which is the size on the State of New Jersey as I stated.

Even if respondents are right that would be a good idea and we do not think it would be.

We do think that the National Environmental Policy Act is not mandated.

Potter Stewart:

May I ask you proceed Mr. Randolph.

As was pointed out in another case during the argument yesterday in the language of the 102 (2)(c) is little — it does not say anything about filing an impact statement it just says, it shall include in every recommendation or report on proposals for legislation and other major Federal actions.

I guess, the language recommendation or report on proposals for qualifies other major Federal actions or may be it does not but what has become, — my question is, what has the government done with this big impact, national impact statement?

It has filled anywhere?

Randolph:

No, it does not file, it distributes in a draft form to –

Potter Stewart:

Does it require, that it had to be done with it, except that it be included in every recommendation or report on proposals for legislation or other major Federal action just kind of language?

Randolph:

What it has done, Mr. Justice Stewart is published and I will give the Court this if I can find it.

In 41 Fed. Reg. 11035 in March of this year, a series of regulations implementing the proposals and suggestions and the formulated policy that the National impacts statements prepares.

So, in other words they did an impact statement, they assessed the National Coal policy and in 41 Federal Register they have now published regulations which the secretary expects to implement taking the suggestions and putting into the policy of the environmental fact.

Potter Stewart:

This is now a proposal —

William H. Rehnquist:

Well.

If it is simply a report, what was the proposal or major Federal action which required it under the Act?

Randolph:

The major Federal, the major Federal action would be the secretary’s adoption which he did.

I think there is an appendix to the green brief by the American Electric Power Company that shows on January of this year, the Secretary adopted the new Mineral Leasing Program suggested in the national impact statement.

Potter Stewart:

The report on proposal for major Federal action.

Randolph:

Of course that is not an issue in this case at all.

Potter Stewart:

No.

Randolph:

And what is an issue in this case, in fact, is whether he has to do an impact statement for the area that respondents have described in addition to the ones he has already done and as you pointed out Mr. Justice Stewart, what the statute says, is that a final impact statement must be issued with each report or recommendation on proposals for major Federal action.

In this case.

Potter Stewart:

The and ought to be an or, should it not?

Legislation or major Federal action?

Randolph:

Yes, there is no legislation that is involved in this case.

The District Court as I stated, found that a regional plan does not exist and has not been proposed for this region that we are talking about.

Certainly, if it has not been proposed, there is no report or recommendation on such a regional proposal for development, the District Court so found.

The only proposals in existence here, private applications that the government must act on.

The District Court found none of the private applications are for regional action.

The grant of one coal mining lease does not commit the Secretary of Interior the grant on another any place else in that region.

What then are the relevant major Federal actions in this case?

The National Coal Leasing Program we have discussed but we have done an impact statement on that.

At lease, only the approval of particular leases, mining plans, rights of way and so forth, to be sure these have to be the subject of environmental impact statements and they will be if they are not already the subject of environmental impact statement.

But, in the absence of a proposal for regional action and a report on that kind of a proposal, NEPA does not require a regional impact statement, otherwise, realize what a Court is saying to the Federal Agency, it is saying, well, you do not have a regional development program but we are going to order you to do a regional impact statement evaluating the environmental effects of the regional action, you would have planned, if you have a regional a program.

And, on top of that, since NEPA requires you to consider alternatives, we are going to ask you, direct you to consider the alternatives to the regional action, you do not have planned but you would have planned if you had.

We do not think that makes any sense.

John Paul Stevens:

Mr. Randolph, it is true thought, is it not that in a challenge to a particular impact statement relating to a particular mining lease, the argument might be made that it is inadequate because it does not sufficiently discuss regional consequences?

Randolph:

Yes, that could be done.

John Paul Stevens:

And they might in such a challenge ask for the same thing seems to be asking for here?

Randolph:

They could and they have and environmental rules have asked for that in number of different cases and the circuits around the country.

I have looked at the scope of the impact statement.

Does it assess the cumulative affects of one more mine, one more mine.

Is it comprehensive?

Does it consider not only the effect of this mine but the secondary effects?

That is the test; this statement has not been challenged.

Randolph:

The statement does that according to the findings of fact to the District Court on page 114 (a) of the petition.

So, we think that District Courts findings of fact, that there is no regional plan existing or proposed or conclusive and in this case.

That is not a very complex analysis, we admit.

But NEPA, I think I should remind, requires impact statements for actions not for areas, and we think, that our analysis is a proper analysis as to the other circuits including now the Second Circuit on remand from this Court reversing its prior decision in the conservation society case.

We think that the paraphrase Chief Justice Marshall, we must never forget that it is a statute we are expounding here, and if that is forgotten, if a Court goes further than that as respondents’ ask this Court to do, it enters a never, never land.

Suppose five or ten or any number of suits were brought in regard to the area that we are talking about in the Midwest, some pick the different area for study, some pick overlapping areas, others pick areas that were smaller, other’s larger, some independent.

I submit there is absolutely no principled way for a Court to say, after shifting to all the environmental studies and statistics that here, this is the one area under NEPA that you must study, Federal Agency.

Now, respondents have proposed a test to enable a Court to do that.

A Court of three adverb test although I am not sure they are all proper adverbs and it is a test I must add that the District Court or the Court of Appeals itself did not adopt.

Respondents say that the area they have chosen is mandatory because all Federal actions there are, now I use their adverbs geographically, environmentally and programmatically related.

This is summarized in their brief at pages 28 to 29 and then expanded upon throughout.

I will take the least likely adverb first, programmatically—

William H. Rehnquist:

Geographically, programmatically and what is the third?

Randolph:

Environmentally.

Potter Stewart:

Environmentally?

Randolph:

Environmentally, I take the least likely adverb first, programmatically.

Now, I suppose what they mean by this is that all Federal actions regarding coal development in the area take place under the same Federal program, if they are referring to the national program, for implementing the Mineral Leasing Act, their assertion is true but irrelevant.

One could draw a line around any piece of Federal land in the United States and make the same statement.

It does not lead to their region at all.

If they are referring to some other program for development of their region, their statement is in flat, direct, contradiction of the findings of fact at the District Court that there is no such program existing or proposed.

A finding of fact as I stated that respondents’ themselves conceded.

Now, they make two other statements; they are geographically and environmentally related.

I think these statements and we submit these statements are meaningless also, if one encircles any area within the United States, one can say that all the actions within that area are geographically related.

It is likewise environmentally related in the sense that the effects on the environment from activities within the region will be of course, felt within the region.

Respondent’s answer to this is that our region makes sense because and I quote from their brief at 104 “It is a geologic fact, the extent of the region is defined simply by the presence of coal” for this they cite their map, and I would like to turn to that on page 103 of the respondent’s brief.

The shaded portion of that map at 103 respondents task represents and they say the Fort Union on Powder River Coal formations and that is the extend of the region.

We submit that map is highly misleading and certainly inaccurate.

In the first place, it admits all the coal fields in the States that they have dealt with here and I will get to that in a moment, first I would like to talk about the geologic fact —

William H. Rehnquist:

Was the map an evidence in the District Court?

Randolph:

Well, there was a map that was contained in the back pocket of the Northern Great Plains Resources Program that was a geologic map.

Randolph:

They referenced that map on the right hand corner page 103, and they say they have drawn this from that map, and that is what I am just about to discuss Mr. Justice Rehnquist.

First of all, what is they talk about the Fort Union in Powder River Coal formations.

In fact, what this map shows is the surface exposure only of a portion of the Fort Union rock formation.

There is no such thing as a Powder River rock formation and in fact to be precise there is no such thing as a coal formation at all.

What the error is the phrase is sometimes used I admit.

What in fact you have are coal seams in rock formations.

So, to get this straight they have drawn here the surface exposure of the portion of one rock formation, the Fort Union rock formation.

Now, what they have left out even in respect of this is the fact that the Fort Union rock formation goes on for miles and miles and miles beyond this area they have drawn, in fact–

William H. Rehnquist:

In fact you could go a long way before you find nine people at no less about the Fort Union rock formation

The ones you are arguing to.

We cannot resolve this as a question of fact?

Randolph:

I will make that point.

But to sum this up as far as their map is concerned; they have left about a 100,000 miles of the Fort Union rock formation.

There is coal in the Fort Union rock formation and I will give the Court the pages, pages 218 to 220 of the National Impact Statement reports coal in the Fort Union rock formation is far South as the Colorado Utah border that runs in to, I think it runs in the Idaho.

It is a green river coal field.

Anyway, they are about a hundred thousand miles off if they are drawing the Fort Union rock formation.

John Paul Stevens:

I had the impression from the Court of Appeals that they did not contrive this area though, that they found this area in a lot of work that had been done by the government one way or another and there is some basis for —

Randolph:

Well, that is right, they found this in the geologic map, but, I think they —

John Paul Stevens:

Well then you attribute this, the arbitrary selection to them or to the government?

Randolph:

No, they have in fact tried to, they have another line around this, they tried to duplicate the Northern Great Plains Resources Programs study area but they left out the State of Nebraska which that also studied and that study considered various different areas throughout the different States for different programs.

It did not propose anything, it was a development program — the reason we admit.

John Paul Stevens:

But the question is that, are you saying that the area they described is one that they defined initially without any reference to prior government tentative proposal or tentative planning anything like that?

Randolph:

The precise area that they defined is their area, yes.

The area just the miles, square miles covered by the Northern Great Plains Resources Programs is a 140,000 square miles there, theirs is about 90,000 square miles.

It takes in part of the area that this program is studied.

Right before we break, I would like to refer to our map in the yellow portion.

The under lay on this map is what we understand to be their region.

If they had drawn the coal field rather than the rock formation which is not, so they do not correspond but the under layers is what we understand to be their region.

They say the extent of our region is defined by the presence of coal.

The over lay is the presence of coal and I do not think one has other coal fields that look like a boxwork, shocking block test, but there are other coal fields throughout the area.

Randolph:

I do not think that one has to be versed, including Geometry to see that on that map, any number, countless numbers of lines could be drawn about around countless numbers of areas.

Now, if it is simply the presence of coal that defines the region where does one draw the line?

This map is a little misleading too, because that is a macro view, and if the Court gets the impression that all that coal is mineable, it is a wrong impression.

I have to spell after lunch.

Warren E. Burger:

Mr. Randolph, you may from where you left us.

Randolph:

Mr. Chief Justice, may it please the Court.

I was about to say that the photo of the map we have is kind of a macro view, not very well focus satellite picture coal field.

The other map we have however is a very focused picture of the surface mineable coal deposits in the area, generally represented I think by respondents complaint.

When one looks at this map in the blackened areas are the areas of the surface mineable coal —

Potter Stewart:

(Inaudible)

Randolph:

The photographic reduction of a very large map that is –now, the blackened areas are the economically recoverable coal in the portion on the yellow map that is represented by the underlay.

This map that I am referring to now shows the economically recoverable coal there.

My point about this is that when one does focus down even more sharply into this area, where does one draw the line?

Now, I would suggest just on a look at this map that one logical place to draw a line around is in the lower part of the map, in a series of mines that runs North to South with the number 71210834, the Courts sees that.

In the lower portion of the map, on the left hand side towards West, there is a series of mines with numbers by 71210834 that is where the Secretary of Interiors draws line.

He encompassed that area with the 50 mile wide swatch that runs a 150 miles North and South.

That is the Eastern Powder River Basin.

It is called that because it is to the East of the Powder River that lies in the shallow earth formation.

As I said, not all the coal in this area is in the Fort Union rock formation, much of the coal there is in what they call the visage (ph) formation but again my point in all this, the conclusion from all these maps is that the kind of geological mistakes, I have been talking about, we think are inevitable, unless in the absence of a regional plan for development, it is left to the Secretary of the Interior who has the expertise in Geology, who has the expertise in environmental considerations, who has the expertise in administering his own program, that is just left to him to define the appropriate areas for study in his administration of Mineral Leasing Act?

Thurgood Marshall:

Mr. Randolph?

Randolph:

Yes.

Thurgood Marshall:

(Inaudible)

Randolph:

Some are under way, the —

Thurgood Marshall:

I see you got three proposed?

Randolph:

Yes.

I would –

Thurgood Marshall:

One of them is in your area, is it not?

One is in the Powder?

Randolph:

These are two other mines for which individual impact statements are prepared for them.

And also, I might add to the Court the — there are two other clusters of mines on this map, one in the upper right hand portion of the map and another in the middle portion of the map.

Randolph:

Impacts, regional impact statements considering all those mines are going to be prepared.

The Secretary of Interior announce the Congress, the Senate Committee about two months ago.

Again, my point in all these is that in the absence of a regional plan, the definition of the area to be covered has to be left to the Secretary, it is at his discretion.

I think one of the curiosities of this case is that respondents rely upon a case called Udall v. Tallman which as the Court remembers as the case that says in regard to the interpretation of a statute by an official who administers that statute.

It is entitled a great way.

The statute in that case was the Mineral Leasing Act.

The official who administered it was the Secretary of Interior.

William H. Rehnquist:

What if the Secretary simply decides to make a study of a say a region of four or five Western States without recommending or proposing any legislation or any major Federal action?

Does that have to be accompanied in your view by an impact statement?

Randolph:

Absolutely not.

Such studies Mr. Justice Rehnquist are under way all the time continuously.

The very existence for the Bureau of Land Management, the very reason for the existence of Bureau of Land Management of course is to manage the Federal Lands and they are constantly studying the resources and so on and so forth.

The Bureau of Mines is not really a regulatory agency, it is really a research agency and they conduct studies all the time.

Various areas are constantly being studied.

I think all the Federal land at one point or another is under constant analysis and study for coal mines, for various things.

So, we do not think that would require an impact statement, I think the result of that would deter the governmental agencies from studying the material.

Now, suppose, everything I have told the Court, at least in the argument portion so far, suppose I am mistaken, suppose I am wrong, suppose the Court of Appeals accurately detected that a regional development plan is in fact contemplated and that, it just so happens that this regional plan, the government is supposedly pondering corresponds.

It just happens to correspond with the region that respondents have identified.

Nevertheless, we submit the government still prevails in this case.

The fact is NEPA does not say or even imply that an impact statement must be done on contemplation.

NEPA does not say that an impact statement must be done when that contemplation somehow mystically arises to the level of a proposal.

What the statute does say, Mr. Justice Stewart pointed this out early in my argument, it says that an impact statement must be done included in a report on the proposal and Scrap Two, this Court decision in Scrap Two said and held “the statute means what it says”, I quote from the opinion.

The time at which an agency must prepared the final statement is the time at which it makes a recommendation or report on a proposal for Federal action.

Even under the Court of Appeals opinion which said the only thing that exists here is some contemplation.

That time has not arrived and we submit, it may never arrive, and matter of fact we go further.

We said, we would submit it will never arrive.

The Court below, we think therefore, should have affirmed.

In the absence of a violation of NEPA and the Court below found none.

It was improper for that Court to continue the injunction which prevented the Secretary of Interior from taking actions that have already been fully analyzed and what the District Court found to be a comprehensive impact statement that assesses the cumulative consequences of coal mining.

That is the statement for the Eastern Powder River Basin.

Randolph:

I would like to reserve the balance of my time Mr. Chief Justice.

Warren E. Burger:

Very well.

Mr. Mendocino.

V. Frank Mendocino:

Mr. Chief Justice, may it please the Court.

I am here today on behalf of the State of Wyoming and 21 other amicus States.

Because we have a lot of stake we think in the decision that this Court reaches in this case.

We believe that NEPA contemplates a major state role in the implementation of the Act.

We know, from experience that the impact of the Federal Programs on our States are tremendous and we believe that program environmental impact statements are truly the only means that we have of determining the scope and the magnitude of these Federal programs.

We think that interior, the Department of the Interior would defeat those objectives by preparing environmental impact statements under NEPA on a project by project basis, and that is our understanding of the real issue in this case.

Now, let me tell you a little bit about the Wyoming experience and what is happening on ground in my State.

At last count, we have no fewer than 134 coal leases, pending applications or prospecting permits in the Eastern Powder River Basin.

Projections for the next few years in the North Eastern part of our State call for 34 strip mines, nine electric power and coal gasification plants.

225 miles of new power lines and 150 miles of new rail road track.

We respectfully submit that it is ridiculous to think that a series of environmental impact statements on each one of those particular projects, all of which require either directly or indirectly Federal action before they can come into fruition.

We think it is ridiculous to think that a series of environmental impacts statements on those projects will analyze what is going to happen to our State.

In the same way that an environmental impact statement taking all of them into consideration and determining the cumulative effect of all of those projects would it have.

Harry A. Blackmun:

Mr. Attorney General, the neighboring State of Utah has not joined you in your briefs has it?

V. Frank Mendocino:

No sir.

Harry A. Blackmun:

As matter of fact, it is one of the brief from the other probably from the other side?

V. Frank Mendocino:

Yes sir, it has.

Harry A. Blackmun:

Is that because their experience is somewhat different than yours?

V. Frank Mendocino:

I believe that one of the reasons and I really cannot, I really perhaps can’t answer that but I think that they have a facility which it sensed gone by the boards your honor that may have played a part in their decision not to join in the brief, that is really the only reason that I can give you for that.

After this litigation was initiated there has been or have been indications that the Department will now agree to prepare sub regional impact statements.

We suggest that, that is not a great deal better, at least the way that we understand and intend to do it and project by project basis.

Let me use as an example of this Sheridan County Wyoming, there are few —

Byron R. White:

What will you do with the language of the statute?

Well, there have been a regional Federal Proposal?

V. Frank Mendocino:

We do not know your Honor.

We submit that they should know.

Byron R. White:

Well, I know but if they say there is not?

V. Frank Mendocino:

We believe, we believe very strongly–

Byron R. White:

No, the only time you submit an impact statement is when the Federal Government makes a report on a proposal and there has not been a report on a proposal on a regional basis?

V. Frank Mendocino:

Your Honor, we would differ with that.

Byron R. White:

Where is it?

That is what I asked you, where is the report?

V. Frank Mendocino:

What we are saying in this case your Honor is that in the Department of Interior they do in fact have plans for an area larger in scope to the project by project basis or even larger than Easter Powder River Basin.

We do not know where it is, but we do know as a matter of fact, most people do in this country face an energy crisis.

We do know that we have enormous untapped natural resources in our State and we do know that the projects which I have suggested —

Byron R. White:

How would you suggest the case go forward?

Have a law suit and call people from Interior Department and ask them if they have a proposal or plan?

V. Frank Mendocino:

I think that the first thing that has to be done is a result of the decision in this Court.

A determination be made as to the scope of environmental impact statement.

If you agree that NEPA calls for an environmental impact statement on a project by project basis only, then I think that obviously you would necessarily decide that our argument is incorrect in terms of the language of the statute.

Byron R. White:

Well, do you not think before under the statute would you not have to find that there was a proposal somewhere for a regional plan?

V. Frank Mendocino:

Yes sir, I certainly do.

I do not think that we have got to that point yet.

Byron R. White:

Well I know, but until you find that, is it not the requirement for an impact state limited to the project that has been proposed?

V. Frank Mendocino:

Not, if there is a plan.

They have taken the position as I understand the issue and I cannot honestly say that I got this understanding from my brother’s argument.

But as I understand the basic issue in the case, it is whether or not a project environmental impact statement is sufficient.

If you agree that —

Byron R. White:

Would it be sufficient if all I have in mind or if the only proposal that ever has been made is for a project?

V. Frank Mendocino:

If, if the only proposal that they have made but we say that the facts and the pronouncements from the Department clearly demonstrate that their plan goes much further than that.

The leases that I have mentioned to you point that out.

William J. Brennan, Jr.:

As far as statute is concerned at least a few, just limit consideration to the words on their face, before they trigger an impact statement there has to be a recommendation or report on something, and it goes on the say — there are enough proposals for legislation in other major Federal actions.

But unless we can say that something or the Court could say that something constitutes recommendational report on one of those things, statute does not call for impact statements, does it?

In other words what is major federal action that you rely on?

V. Frank Mendocino:

Well, I have got to confess your Honor that I have got to rely on Mr. Terris for that portion of the argument.

Byron R. White:

What is finding of the District Court quite to the contrary, that there was no — that the only proposal there was, was a project proposal?

V. Frank Mendocino:

Yes, that was right.

Byron R. White:

Or did the Court of Appeals set that aside, find it was erroneous?

V. Frank Mendocino:

In the way that I read, contrary again to my brother’s interpretation, the way that I read that is that Court of Appeals sent that back to determine whether or not there was a program that was larger in scope in than the project, specific project.

That is I think extremely important.

I started to mention Sheridan County and I think you could note this on the map, there is a little bit development anticipated in that county.

Where is that one?

V. Frank Mendocino:

That is in the Northern part of the State, your Honor.

William J. Brennan, Jr.:

That is left to your — is it yes, on this map, left to the powder river valley?

V. Frank Mendocino:

It is in the area there where three small coal deposit shown on the left.

Potter Stewart:

There were five or six?

V. Frank Mendocino:

Right.

The projections for the increase in the population in that County are only 9% by 1981.

However, there are extensive developments taking place South in Johnson County Wyoming and North in Big Horn County Montana.

If you take the anticipated development with the accompanying population increases projections for those two Counties in addition to Sheradin County.

Projections are that there will be a population increase in Sheradin County alone of over 40% by 1981.

I think the implications of that in terms of the need and demand for public services are obvious and that points out why we believe that the environmental impact statement has to take in the consideration more than a single project.

Now as it is stated in the amicus brief and I repeat here, we have not taken a position as 22 States on what that geographical area should be.

We do feel however, that it must be broader and that the act calls for to be broader than a project by project basis.

Potter Stewart:

Mr. Attorney General, we recently had an extraordinary increase in population down the Rock Springs area?

V. Frank Mendocino:

That is correct your Honor.

Potter Stewart:

Was that attributable to a coal development or to something else?

V. Frank Mendocino:

In part your Honor, some was coal and some was trona.

Potter Stewart:

Some was?

V. Frank Mendocino:

Trona, which is another mineral substance.

What was it?

V. Frank Mendocino:

Trona, your Honor.

Potter Stewart:

There is population explosion down there was it anticipated and–

V. Frank Mendocino:

No sir, not at all.

And this is why feel that we have such a stake in this case.

Thurgood Marshall:

But the real point is that eventually Interior is going to have to broaden its area and file a report broader than it has and when it does it will have to have an impact statement, all in the future.

V. Frank Mendocino:

That is in part correct your Honor.

V. Frank Mendocino:

I suppose that I would –

Thurgood Marshall:

I do not know what statute you are going get that under?

V. Frank Mendocino:

We believe that the development of the West has got to be just because of the pronouncements and the statements that have been made.

More, there is more to it than just a determination as to whether they issue one lease.

Thurgood Marshall:

You are relying on the NEPA Act, that is all you are relying on, am I right?

V. Frank Mendocino:

Yes sir.

Thurgood Marshall:

And you are not under it?

V. Frank Mendocino:

We believe that we are, your Honor.

Thurgood Marshall:

You think that Interior should be in a position so that they would have to follow the statement until they file a report or take and move in that direction, you lose.

Potter Stewart:

And our position in this case —

V. Frank Mendocino:

Yes sir.

And we believe that they have furthermore, we certainly —

Thurgood Marshall:

What we have is that they have been studying it and that is all you have.

V. Frank Mendocino:

No, we think that we have gotten much more than that your Honor and the pattern of what has happened in our State and in the West in the last several months.

Thurgood Marshall:

What is Interior been doing?

V. Frank Mendocino:

They have granted all of these leases and permits and they have pending other applications for various types of coal lease permits.

Thurgood Marshall:

Exactly, the way they are doing it, that instead of doing it piece by piece they should do it all in a region then.

V. Frank Mendocino:

No, I am saying that the pattern of issuance of those leases demonstrates clearly that there is more involved than and simply a determination that is specific lease should or should not be issued.

It is a part of a pattern to develop the mineral resources of the West.

Thurgood Marshall:

You do not have it.

We do not know what it is.

V. Frank Mendocino:

Well, I–

Thurgood Marshall:

That is problem that seems to me.

Potter Stewart:

Mr. Attorney General, is that big impact statement is not a view, does that relate to projects in Wyoming?

V. Frank Mendocino:

Yes sir, it does.

Potter Stewart:

Does it just relate to just one project as you have defined it?

V. Frank Mendocino:

No sir, but that was initiated.

John Paul Stevens:

How many projects does it run.

V. Frank Mendocino:

After the litigation commenced, it relates to four mines, four strip mines and the projector track which —

John Paul Stevens:

Did you make any attack on the sufficiency of that impact statement?

V. Frank Mendocino:

No sir.

John Paul Stevens:

Why not?

V. Frank Mendocino:

Because that impact statement was not a part of this litigation when it was initiated.

It was delivered to the Court of Appeals where as a policy matter, we were unhappy with that impact statement but we have not taken any action to attack it pending the disposition of this case.

There is a separate question entirely and that goes to the sufficiency of the impact statement assuming that there is agreement on the scope.

William H. Rehnquist:

If you should lose this litigation, do you think you would have a future opportunity to attack this sufficiency of that statement or is that involved in this case?

V. Frank Mendocino:

It is not involved in the case your Honor.

Yes, I think we would as to sufficiency.

Warren E. Burger:

Mr. Terris, before you proceed let me put to you the questions that I put to your colleague, the Attorney General, precisely what language of Section 102, do you call upon?

Bruce J. Terris:

We rely expressly on the proposal language and let me be very clear about that.

William H. Rehnquist:

Legislation for major federal action?

Bruce J. Terris:

No, no, for major Federal action.

Your Honors, there have already been dozens, not a proposals but a Federal actions which have taken place since NEPA without an adequate regional, environmental impact statement.

The issue in this case is not a matter of timing.

If anything, we are getting too late in the process not too early.

What we have is a set of proposals, some of which have already been acted upon and minds have actually been opened.

We have in addition literally hundreds of additional proposals which are coming in front of Interior.

The issue in this case, is whether in order to approve any of those proposals to take action, the Secretary of Interior has to have at that time a comprehensive regional environmental impact statement.

Now, in our mind that is expressly under Section 102.

William H. Rehnquist:

Well, the keyword Mr. Terris, at least literally and I go back to Justice Brennan’s question here, to your associates.

It is a recommendation or report on a proposal.

Bruce J. Terris:

Exactly.

William H. Rehnquist:

That must be accompanied by an impact statements.

Bruce J. Terris:

Exactly your Honor.

Now, what we have here let us just take, we can take any one mine of dozens that are involved.

Let us take the four that were approved by the Secretary after this Court lifted the injunction in January.

The Secretary of the Interior went ahead and approved four mines.

Potter Stewart:

(Inaudible)

Bruce J. Terris:

They are among I hesitate trying to tell you which of those numbers in the Eastern Powder River Basin they are but they are among those numbers.

(Inaudible)

Bruce J. Terris:

That is quite right your honor.

And he approved them.

Now in approving them we say, that in taking that actions, we have really going beyond the proposal.

We have actually — the proposal language of NEPA actually requires a statement on an earlier stage.

We have really going beyond that, where to the point that he has acted and minds are going to be opened.

William J. Brennan, Jr.:

And in connection with each of those proposals, was there included in it, the report there on an impact statement?

Bruce J. Terris:

Yes.

Now, let me come to express that —

William J. Brennan, Jr.:

Why does it not satisfy —

Bruce J. Terris:

Well, let me deal with that expressly your Honor.

This is the document and it is the document that my brother has pointed you.

That document is not in this case and I will tell you exactly why.

It was not in existence at the time of the District Court, rendered its decision.

A draft of this document was in existence when this case was in front of the Court of Appeals.

The government submitted that draft as well as the draft of the programmatic statement to the Court of Appeals.

The Court of Appeals, the Clerk acting for the Court wrote them a letter and said it to them, why have you given us this document?

The government replied for your information it is irrelevant to this case.

John Paul Stevens:

Are the four leases that you rely on also irrelevant that —

Bruce J. Terris:

No they are not Let me go one step further your Honor.

John Paul Stevens:

Does that mean, you can talk about the leases unless they can also talk about what they did as a condition to agreeing to the leases?

Bruce J. Terris:

Your Honor, let me be clear about this. Remember with the Court of Appeals decided here.

The Court of Appeals did not make a final determination in this case.

It remanded the case.

If the government’s position is today which I think maybe it is from my brother’s argument that this statement, now is relevant and does satisfy the requirements of a regional statement, then I submit that is a proper —

William J. Brennan, Jr.:

Your argument was that that satisfies the requirement for the regional statement.

That it satisfies the requirements of the statute in respect to these four leases?

Bruce J. Terris:

Well, let me then go back to step your Honor.

Our argument is that in considering a proposal and in taking action, the Federal government has to do a statement which is regional that is the issue of law okay, okay–

William J. Brennan, Jr.:

Where is that coming from?

Bruce J. Terris:

But, your Honor, to get to that question we have passed the question, is there are a proposal and is there action?

Bruce J. Terris:

Then the question, in which I think is where we are at —

Byron R. White:

Assuming there has been some regional proposal.

Bruce J. Terris:

Your Honor let me, let me–

Byron R. White:

Is it fair enough to take?

Bruce J. Terris:

Has there been regional proposal?

Well, let me tell you exactly what there has been–

Byron R. White:

Can you answer yes or no or not?

Bruce J. Terris:

They, I think in our view there has been a regional analysis and decisions made by the Federal government and let me be very precise on it —

Byron R. White:

You said that the words of the statute are that —

Bruce J. Terris:

There is a proposal, you see it is action I really —

Byron R. White:

The regional proposal?

Bruce J. Terris:

There has been regional actions, proposals and actions.

Let me be very express —

(Inaudible)

Bruce J. Terris:

Your Honor, look at — I would refer you to the finding 14 of the District Court.

The District Court hold, finds as a fact, it is in the petition, it is in the petition for Certiorari of the government your Honor and it is in the back.

The District Court finds as a fact that the government is attempting to control development, control development in the Northern Great Plains region, that finding is expressly based on an affidavit of Secretary Morgan that they have taken steps namely, the Northern Great Plains Resource Program and other actions —

William H. Rehnquist:

Where is this in the referral, what number is it, I mean?

Bruce J. Terris:

14.

William H. Rehnquist:

Finding 14.

Bruce J. Terris:

He says they are not part of a plan or program to develop or encourage development but our attempts to control development by individual companies in a manner consistent with the policies and procedures of NEPA.

Now, I submit to you that if he is controlling development in the Northern Great Plains region, he cannot control development and analyze the situation on a project by project basis.

Let me come back to Justice Brennan question–

Potter Stewart:

(Inaudible)

Bruce J. Terris:

Your Honor, a proposal, I suppose, the way to put expressly in terms of this finding –yes, yes.

William J. Brennan, Jr.:

Try to get to it?

Bruce J. Terris:

Your Honor, I want to get to it.

I want to put it in terms of finding 14, I think at the very least that an attempt to control development is a proposal and beyond it, it is an attempt, he has not actually proposed that he may do that, he has said — the finding is he is attempting to do it.

Byron R. White:

He has no plan or program to develop or encourage development?

Bruce J. Terris:

That is quite correct your Honor.

Bruce J. Terris:

Now the question in this case, really the root question is.

Can the government attempt to control development, issue dozens of mining leases, approve rail roads, start probably the largest industrial development in the history of this country in a rural area, all with its decisions, can it do that?

And say, yes we would have to do in an environmental impact statement on the region, if we did planning, but, since we are not going to do any planning, we are excused from it.

In other words the argument is the less we do under NEPA, the less NEPA requires us to do.

Now, NEPA three separate times talks about Federal planning.

Is it conceivable that the Congress in United States said, that if you are controlling development and issuing leases and doing all this things that is simply because you will not plan, that you do not have to so any regional analysis.

Warren E. Burger:

(Inaudible)

Bruce J. Terris:

Well, I am saying that, I am asking the question because that is the issue in the case.

I do not think the Congress has said that either, your Honor.

Thurgood Marshall:

(Inaudible)

Bruce J. Terris:

I do not think you have to rewrite it your Honor.

I think the issue is it seems to me in this case there has been clearly a proposal and we have going beyond the proposal.

Now, the question is, when you have a proposal –.

Thurgood Marshall:

I mean, my idea of a proposal is not yours.

Bruce J. Terris:

Your Honor, I think that if you are attempting to control development, it is at least fair to say you are proposing to control development.

Byron R. White:

some proposal?

Bruce J. Terris:

I do.

Potter Stewart:

More than a proposal?

Bruce J. Terris:

It is more than a proposal.

You are taking action, you are not in attempt is more than a proposal, it is an action.

You are going forward with doing something.

John Paul Stevens:

Just to be sure I understand.

You are saying finding 14, supports your view that there is program for regional development.

Now, as I read Finding 14, most of the references are to national programs of one kind or another and the specific language you talked about are attempts to control development by individual companies?

Bruce J. Terris:

Your Honor, the specific studies that are mentioned in finding 14 are both regional studies on this region.

John Paul Stevens:

The first one is on a national basis and the second one is South Eastern Montana and North Eastern Wyoming.

Bruce J. Terris:

That is right.

John Paul Stevens:

which is different from the region you described?

Bruce J. Terris:

Your Honor, I want to—

John Paul Stevens:

The third is the National Coal Leasing policy and then the fourth is the Indian lands and the NGPRP, the credit group of different thing, is this your strongest finding in support of your position that there is a regional program?

Bruce J. Terris:

Let me be clear your Honor.

I do not believe that the Department of Interior has sat down and said here is our program for development in the Northern Great Plains, I do not believe that has happened.

I do not believe they are planning.

The question your Honor is when they do all these different things and they attempt to control development, I think the finding is very clear that is what they are doing and by the way, their finding your Honor, is based — Let me just go to the underlying facts on which their finding was based.

Secretary Morgan’s affidavit says that the department has taken action to control development of coal on a national basis and in the Northern Great Plains.

Now, that is what that finding is based on, there are some other facts too, that support that.

Lewis F. Powell, Jr.:

It is your position that the action that has been taken I think you have characterized that as study in other ways, focuses precisely on the same regional area that you are recommending?

Bruce J. Terris:

Your Honor, there are really two issues in this case and they are really sub issues.

The first issue is do you have to do a regional statement at all, is there any requirements in NEPA that require you do anything more then look at the specific strip mine which is in front of you that I submit to you your Honors.

William J. Brennan, Jr.:

That will have to be yes, if in fact the Interior came up with a proposal for legislation or other major Federal action on a regional basis, of course there will be regional impacts.

Bruce J. Terris:

But, I am saying your Honor, but—

William J. Brennan, Jr.:

Why are you saying they did do that, that is what —

Bruce J. Terris:

I am saying that they both had a regional proposal and they had so many individual proposals that they have to be even separate from the first proposition, they have to be analyzed regionally.

Let me go back to Justice Powell’s point because it seems to me it isolates the two basic questions here, one is do you ever have to look beyond a specific topic that government is considering at that moment, that is the first issue and I regard that as the basic issue.

The second issue is if the answer to that is yes you do sometimes have to then what should the size of the region be here?

William H. Rehnquist:

Well, the statute itself, they require you to look beyond the particular project as what the Justice Stevens question this morning indicate but that can be done in an individual projects statement it may have to talk about other things than just the immediate consequences of that project.

Bruce J. Terris:

Your Honor, that is correct and if the government’s position had ever been that what they proposed to do was in the context of an individual project to look at the entire interrelationship in the region there would not have been any litigation.

The government position from the start and is still is today that they do not have to look beyond a specific project.

William H. Rehnquist:

You can challenge that if you disagree with it when they file an impact statement that everybody concedes is required for a specific project and you can say it is not broad enough?

Bruce J. Terris:

We could your Honor and there is a procedural question which was argued in the Courts below which has not been argued in this Court as to whether procedurally, the way we should have proceeded, instead of coming in and isolating this basic question which cuts across the board or whether we should have literally brought separate law suits against every single environmental impact statement, which is as — because it does not look at the whole region.

Now, that your Honor, I do not think is a basic question except for in terms for Judicial Economy.

I think if we had ever brought one lawsuit after another of that kind, it would have been thought that that was a very improper way for us to proceed.

But that is not the basic issue I quite agree, if your Honors believed that the way for us to proceed in the future is to attack each statement separately then of course we will do so.

But I think the basic question in front of you.

Is it not that procedural one that whether when the government makes clear that its position is that they are not required by NEPA to do regional statements that in that context, they do not have to look beyond an individual mine.

Thurgood Marshall:

Who is better qualified to draw the lines of a region in this area, the Interior Department or this Court?

Bruce J. Terris:

The Interior Department your Honor and the Interior Department drew the line.

Thurgood Marshall:

Are you not asking us to do?

Bruce J. Terris:

No.

Let me be very clear about that.

Bruce J. Terris:

The line we want is the Department of Interiors line and let me go back to the map that was given to you because —

Thurgood Marshall:

As is stated, their line is the Powder Basin, that is their line.

Bruce J. Terris:

No, let me go back –

Thurgood Marshall:

Is it not what they say?

Bruce J. Terris:

Well, your Honor, they do in one sense but let me go back to the map which is distributed to you.

If you look on the left hand side under explanation it is said, there is a line there that says, outline of the Northern Great Plains coal field.

Now, it is a very faint line in the map that you will see it winding around and that line is the identical line which is in our map in the brief, which is the Northern Great Plains Resource Program study area, the area that they have chosen to control development, a 1975 water study of the Interior Department, statements by Secretary Morgan, that you had to do study of this area in order to control and coordinate development, statements by the administrator of EPA, that this was the right area, statements by the council and environmental quality that this was the right area.

Your Honor, I am going to a different question I believe when I go to this. I am going to the question if you assume that we have met the statute that there are proposals.

Then I am going to the question, what is the right area for analysis?

And what I am saying your Honors is I agree completely that the Department of Interior has considerable discretion in determining what is the proper region.

What I am suggesting here your Honors is that they have repeatedly over and over and over again said the right region for environmental analysis under NEPA is the identical region which we have argued, there should be a regional analysis.

Now, that is not a coincidence that we came to the same area, the reason that we came to it is because this are geological facts.

The government has submitted a brief showing there are lots of other coal in the United States, that is true.

But they are not in the same geological formation and the Department of the Interior made the decision, that the right area, the right geological formation was this one.

Now, I want to go back to Justice Powell’s question, because I do not believe that is really the fundamental question in this case, I want to explain that.

If this is the right region, let us make an assumption right now that the sub regions and I think that is what the way Interior describes them, that the sub regions are correct.

John Paul Stevens:

That is what I want to ask you just what we have been telling you project by project.

But, really are we not talking about difference about one over all region in five sub region, and that is —

Bruce J. Terris:

You Honor, that leads me I think to the basic point.

John Paul Stevens:

I will just ask one question about it, does the record tell us what are the five sub regional impact statements are all prepared in the same office, under the same supervision?

Are they working entirely autonomously?

Bruce J. Terris:

I believe your Honor, they tend to be subdivided at least in the start, different regional offices and different offices of the Bureau of Land Management and other Federal agencies that are in the field.

In other words, there is–

John Paul Stevens:

Does it satisfy your purpose.

If we had the five sub regional statements and then they bound them all together in one great huge volume with a long introduction sort of talking about the things that overlap them among the three?

There is no harm in having the five sub regional statement I guess?

Bruce J. Terris:

No your honor.

Let me explain the ramifications of what we are now dealing and this goes back to Justice Brennan’s earlier question.

Everybody believes your Honor that you have to look beyond the individual project, I do not think there is any dispute about that.

This statement, this sub regional statement makes the same assumptions that we do.

Bruce J. Terris:

Namely you cannot look at a mine by it self, you have to take a region.

Now, they have taken a much smaller region but they have taken a region and we have cited in our brief at great length how one Federal agency after another EPA, CQ, Interior, all the other line agencies that deals with this problem have all agreed that you cannot look at individual statements by themselves.

Now, the government, we set out by the way at great length in our brief, how Secretary Kleppe has essentially agreed with our position, on February, on January 26, he stated that he had made a determination, it is on appendix to our briefs, the documents.

He had made a determination that indeed you did have to do regional statements.

William H. Rehnquist:

Where did he make that statement?

Bruce J. Terris:

It said its—

William H. Rehnquist:

I mean where in the briefs but what was the forum?

Bruce J. Terris:

The forum was your Honor, that when he makes final decision at least on big issues, he has what is called is a program decision option document.

William H. Rehnquist:

Is that press conference or—

Bruce J. Terris:

Well it was announced through a press conference your Honor.

But, the document is in the back, it is not a press release, it is the actual decision document that he signed.

It took them; he had a press conference in and he released it to the press.

But we are not relying on a simply a press release.

Now he then told the Senate committee the same thing a few weeks later that he decided to do sub regional statements.

He has done one, two are about to be started in North Dakota and South Eastern Montana, two others are under consideration in a priority list.

Now, at least we believe that he has made the determination, which we have argued for from the beginning.

(Inaudible)

Bruce J. Terris:

No, your Honor.

I think there is one more issue to decide and I do not think it is the basic issue although, I think the government by the way will dispute that is mode even on the point I have just been making.

They want to say that the secretary has started this process out of the goodness of his heart.

NEPA did not require that he do this and he that means presumably could change his mind at any time.

Warren E. Burger:

The Interior and the whole management program would be doing this now and before NEPA was ever on the books?

Bruce J. Terris:

We are, they did not do it though however, before NEPA was on the books that is of course why need help —

Warren E. Burger:

In the last 20 years, they have been doing this not only with the coal but timber and many other things?

Bruce J. Terris:

You mean it is kind of environmental analysis.

Warren E. Burger:

Not an impact statement, because the word was not invented but making that kind of study and keeping there study is going crap?

Bruce J. Terris:

Your Honor, I with all respect I disagree very strongly.

I think the history of NEPA shows how little indeed they did this kind of thing before 1970 and that what NEPA has done, it has started really a major revolution in a way that Federal agencies proceed in terms of the environment and I this is a constructive step along that line.

I would just point out that even if this document on Eastern Powder River Basin is adequate and your Honors say that is the right region.

I would remind you that there had been no such statements on any other part of the region, that at least four-fifth of the region has not been analyzed at all and, that is what they are just beginning to do.

Thurgood Marshall:

(Inaudible)

Bruce J. Terris:

No, not only you do not have to, I think your Honor it will be improper to.

Thurgood Marshall:

I hope that you are even suggesting —

Bruce J. Terris:

I am not your Honor.[Laughter]

I remind you that I did not bring this pile of documents in front of you your Honor.

I do not think it is relevant except for the fact that I think what is relevant is that the Department of Interior has decided.

Yes, indeed, it does do regional, sub regional statements.

But, it does not intend to do regional statements and I think the major issue you have fun you did is left.

The major issue of dispute is the question whether we are correct in taking Interiors on lines and saying they yes indeed that is the right area.

Because I do not think we have a major dispute with Interior, on the question of whether sub regional or regional statements have to be done.

I do think we have a dispute with the Department of Justice to be very frank about it.

William H. Rehnquist:

But if the government is right that the secretary has done this out of the goodness of his heart and the law does not require him to do it, then you are not entitled to any judicial relief in a way of an injunction in the system —

Bruce J. Terris:

That is quite correct your Honor.

William H. Rehnquist:

Which was wrong in issuing the injunction?

Bruce J. Terris:

That is correct your Honor.

That is why I think that it is not moot in any kind–

William H. Rehnquist:

Do you agree that the injunction issued by the Court of Appeals should be dissolved?

Bruce J. Terris:

Oh no, no, no your Honor, let me–

William H. Rehnquist:

But that is what you said?

Bruce J. Terris:

No, Let me be clear about it, I rely on Interior’s new found policy of doing sub regional statements, has confirming our view and that of VPA and CEQ that regional analysis is required by NEPA.

In other words I think that is the Court—

William H. Rehnquist:

They say that is not the case?

Bruce J. Terris:

Your Honor, the Department of Justice says that is not the case.

William H. Rehnquist:

Well, under the Department of justice represents the United States in all litigation before this Court?

Bruce J. Terris:

That is quite correct your Honor.

But Secretary Kleppe said in his program decision option document I think it is very clear if you look at it, that t NEPA required these actions and I think it is very clear that is what the secretary was doing.

William J. Brennan, Jr.:

That is sort of an administrative interpretation of statute, which we should get that one?

Bruce J. Terris:

I think you should give deference to that, I think even more than your Honor.

I think the proper interpreter of NEPA, the one that Congress and the President have both charge with interpreting NEPA happen to be EPA and CEQ, now I do — I think that Interior is entitle to some deference too.

Here, I think there is a coincidence which has occurred in which all three agencies have found that regional analysis is required by the Act.

Byron R. White:

Now, which are you saying that they say, that the regional, sub region statement is required because a sub regional statement is the natural requirement of a project proposal?

Bruce J. Terris:

No.

Byron R. White:

Or are you saying that the Department of Interior had said they have a sub regional proposal?

Bruce J. Terris:

I am not sure what the Interior thinks your Honor.

Let me say what I think.

Byron R. White:

I am certainly relying on Secretary Kleppe’s decision, now did he say they have a regional proposal or that for some reason or another we are going to do a sub regional statement?

Bruce J. Terris:

I think it is more accurate to say that NEPA that in order to carry out our NEPA responsibilities, we are going to do a sub regional statement, I think–

Byron R. White:

Do you agree with the statement in the Court of Appeals, we hold a comprehensive major Federal action is contemplated in the Northern Great Plains and therefore, what, do you think that is enough that some of the major Federal action is contemplated?

Bruce J. Terris:

No, but I want to be clear the Court of Appeals did not think it was enough.

The Court of Appeals expressly stated –

Byron R. White:

Well it went on from there; it went on from there to say that the District Court’s contrary conclusion was an error and that then went on statute in order further proceedings based on that statement?

Bruce J. Terris:

Yes, your Honor.

But you did not say that a contemplated action was enough, it expressly said the contrary.

It said although it thought that action was contemplated it was going to remand the case to the District Court in order to be determine whether the Federal role, in other words the District Court was going to determine what kinds of actions really were going to be taken.

Byron R. White:

The District Court found that was no any proposal, any regional proposal?

Bruce J. Terris:

It did not use I do not believe, your Honor, those words because there was no plan or program.

Byron R. White:

Well, at the time the Court of Appeals acted there was a — Court of Appeals seems to concede there was not, that they agreed that there was no any plan or proposal?

Is that something that is contemplated?

Bruce J. Terris:

Your Honor, but it said that that is all they could find now.

So, it was contemplated.

Therefore, it was not making a determination that are–

Byron R. White:

But how could they ever say that up to that very moment an impact statement was required?

Bruce J. Terris:

It did not.

The holding is not —

Byron R. White:

Why should they not have affirmed?

Bruce J. Terris:

Because your Honor they thought they that the issue was unclear about the role of the Federal government–

Byron R. White:

It was very clear enough that it was only contemplated.

Bruce J. Terris:

At that point your Honor, it was contemplated.

I think by the way that is a very conservative view with of the facts before the Court of Appeals but taking that conservative view, the Court of Appeals then said, we are remanding to the District Court to determining what the role of the Federal government actually would be.

Now, that is directly consistent, I submit was Scrap.

Bruce J. Terris:

That you sent it back to the District Court to determine whether the Federal Government was really going to take these kinds of actions.

Warren E. Burger:

What the Court of Appeals did was to take a full series of relatively minor actions of the Federal government accumulated them and taking them all together this amounts to major Federal action?

Bruce J. Terris:

In part, you are right Your Honor.

But, I think not completely, I think the fact —

Warren E. Burger:

You say almost they would say almost exactly that?

Bruce J. Terris:

They have to change at least one part of that statement.

The each individual part were not smaller actions.

Each one of them is actually a huge actions.

Each one of those actions, for example has, in a government I think conceives this that each one of those is a major Federal action under NEPA.

So what the Court of Appeals was saying in a situation and the Court by the way expressly came down on this language about control development.

We are controlling development, where you have dozen or hundreds of actions, where now it turns out the Federal government itself admits they have to do regional analysis.

That in that kind of situation, you have to look at the entire region and I think–

Warren E. Burger:

This language, that I was trying to paraphrase, the Judge Wright says, the question is whether the cumulative effect of various Federal actions, all individually minor could together constitute major Federal actions.

He is acknowledging that these were each minor–

Bruce J. Terris:

Your Honor, all I can say he was clearly wrong and I think he was clearly wrong your Honor on a proposition that I think the Federal government will agree with me because they are each individually your Honor actions in which they admit they have to do environmental impact statements.

The mines were talking but just so we understand what were talking about, each one of these, each mine is among the largest mines in United States it has each one of the mines has several square miles of area.

It is doubtful according to the Federal government itself that these lands will be reclaimed for dozens of years in prompt and maybe not forever.

We are talking about power plants and coal gasification plants of a size that are among the largest in the country.

John Paul Stevens:

One thing we have not really address, you said, there should be one overall regional statement instead of five sub regions, why?

Bruce J. Terris:

Well your Honor, let me come back because I think I — to the statute because obviously that is what we are talking about.

Once we decide we have got a proposal or an action, that triggers the environmental impact statement requirement and I have argued at length about why I think that there is such a proposal and action.

In fact, there are many of them and that they are tied together by controlling development.

Now then the question, the question you have to decide that is what should be the scope of the environmental statement.

Now, I submit that the way you determine that is to look to the five factors in 102 (2)(c) you look to what area you have to examine in order to determine the environmental impacts and the alternatives to the project.

In other words, it is a practical question that one is dealing with at that point.

And, CEQ has said the way you look at that giving a gloss on that is whether there was an inner relationship, the three adverbs that come from CEQ they do not come from us.

Now —

Potter Stewart:

The environmental and geographically and programmatically.

Bruce J. Terris:

That is right.

Those come from CEQ and they are gloss on how do you look at those five factors and analyze them when you have interrelationships between projects.

Bruce J. Terris:

Now, we say you have to look at the whole area that I would not make that argument your Honors, simply analogical basis, I think it is true logically, we have argued link in our brief that it is logically true.

But our basic proposition is they decided that you have to look to the whole region to analyze those five factors.

You will see in our brief that EPA said you had to do that, Secretary Morgan said you had to do that, the Northern Great Plains Resource Program said you do that–

Potter Stewart:

Just to know that the red light sounds to be very brief but, is it not correct that in order for us to say five sub regions are not adequate you need one overall region, we must conclude that the Secretary is arbitrary and determining that five radically, is not the stand point?

Bruce J. Terris:

I think that is correct your Honor.

I think you only get to that proposition after you first decided whether regional analysis has to be done at all and then you get to that proposition.

I think the question is whether he was arbitrary in the light of his own and other Federal agency prior decisions and actions.

Thank you.

Warren E. Burger:

Very well, Mr. Terris.

Francis M. Shea:

Mr. Chief Justice, may it please the Court.

First I would like to ask the Court to look at that finding 14 again.

That is on page 98, yes in the petition for cert.

Department of the Interior has taken action to control development on a national basis and they have with their programmatic on a national basis and their leasing policy on a national basis.

That covers the whole nation including the Northern Great Plains, it says on a number of variable thing but what is this talking about is you will get down to the end.

Those actions however, are not part of a plan or program to develop or encourage development or rather attempts to control development by individual companies in a manner consistent with the policies and procedure of the National Environmental Policy Act.

I do not see how this can be relied on for the proposition that the Federal government of the Interior has undertaken to control development of the region.

Except as they are controlling development of pursuant to a leasing program which applies to the whole nation.

Warren E. Burger:

Is it possible Mr. Shea, that even having completed which they have not done apparently, even having completed the study of the whole area and concluded that the development of the coal resources was in the public interest.

We should proceed that they might then with respect to particular mines on particular areas.

Say that that was an interference with the environment which was not tolerable and that particular project would not go forward is that?

Francis M. Shea:

Well, of course if the Court please, there has been no change of position on the part of the Interior, initial affidavit which was put in by Secretary Morgan set out that we completed this coal programmatic and we have the information from the Northern Great Plains Resources Program.

We will decide possibly, we will have an impact statement from the whole region that possibly the purposes of NEPA will be better served by preparing an impact statement on an individual project or on certain sub regions or on the basis of basin boundaries et cetera.

And, this is exactly what Secretary Kleppe is saying today.

Now, indeed, of course the studies are going all the time and what they finally decide on is what subject they will, what major Federal action they will decide to carry forward.

Now, I would like to ask the Court if it will to return to the statute and to Scrap Two which it seems to me says that the statute means what it says.

And I would like to suggest to the Court that there is a very different question presented on what is, what interior is compelled to do, what they must do under this statute and what they find it wise to do.

Now, they may find it wise to prepare particularly regional statements rather than the statement on a particular project.

Incidentally, I think all the Secretary has said he’s going to do is to, is he thinks prepare a couple of more regional statements.

I believe in his response to questions put to him.

But that distinction it seems to me has to be kept in mind which I think your question posed and suggested and, I would like to — I am not sure that these matter is not well in mind from the questions that the Court has put.

Francis M. Shea:

But looking to 102 (2) (c), this is what compulsory and all that is compulsory that they will be included in every recommendation, a report on proposals for major Federal actions significantly affecting the quality of human environment and what is to be included, the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented.

Alternatives to the proposed action, any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Now, if the Court please in Scrap II if I understood correctly, the tolling, stitching, the Court said that if we want to determine what kind of an impact statement is to be prepared we must first define accurately what the proposed major Federal action is, and secondly, that in circumstances such as exist there and exist here where the proposals where by private companies that the recommendation of the proposal for major Federal action is the approval of those applications for in scrap II in failure to suspend but the approval of those actions.

Now, gentleman, I suggest that it is impossible to read 102 (2) (c), I should not say impossible but it seems to me very difficult to read 102 (2) (c) as relating to something other than a specific proposal.

The approval of mining lease, but how you can read this as saying, that it covers prior action, that covers applications which are pending, which has no commitment to approve, can you read the environmental impact of the proposed action as saying the environmental impact of all prior actions and all applications for leases and for rights of way, for mining plants, can you say that any irreversible and irretrievable commitment of resources which would be involved in the proposed action that you can read in to that all the actions which have been taken in the way of leases and mining plants et cetera and all of those applications which are pending that there is no commitment to approve which may or may not be approved.

I suggest the Court, that it is not to be so read.

Now, to be sure as Mr. Justice Rehnquist suggested and I think as Mr. Justice Stevens suggested, when there is indeed the recommendation of a proposal, of a particular mining plant for instance, well, that is approved.

It must deal with the situation which is approved if this adds further impact on the environment that breaks the camels back, a portion you got to look at what the circumstances are what the cumulative effect it is, and if it is claimed that impact statements is inadequate, it can be claimed that it is inadequate, because it does not give consideration to the cumulative effects but may I say again that this does not mean that the Secretary is under obligation.

He may do it because it is the wise Course, it is the most desirable way of managing it but this is quite different from saying that these under obligation to prepare a regional impact statement.

Now, he would be under an obligation of preparing regional impact statement, if that constituted if a plan had been, if he had a plan, which involved the entire region that he was carrying in effect except that as you know that the decisions of the Courts, the Court of Appeals have held that even where you had such as thing as two phases of tea tongs (ph) or where you have the simply Utah project, if part authorized by the Congress, if part of that has independent utility, a single impact statement on that part having independent utility and which does not commit you to go forward and finish the entire project, can be supported by an impact statement which is limited to that part.

Now, therefore I would submit your Honors and I did have the feeling that this was brought in the course of the question.

Then you have got to find a proposal, the proposal has not so far as I could hear, and brought your attention by opposing council nor by the Court below, and what he talked about, the Court below said was all of these prior approvals, all of these things in being, all of the applications which are pending and the studies which have been made, that these indicate that Interior is contemplating control.

John Paul Stevens:

Mr. Shea, before you leave that point that Judge McKinnon in his dissent made the point that the commitment of the granting of approval in one area does not necessarily involved in commitment to grant approval in other areas.

In other words, he took the position of these five regions or perhaps even individual projects, are not sufficiently inter dependent to require any one overall statements.

Your opponent argues that we need one statement for the entire area.

But I like you to tell me is whether we need to decide that issue or not?

You understand my question; do we have to agree with Judge McKinnon on the point that the entire area is not inter dependent in order to agree with his ultimate conclusion?

Francis M. Shea:

Well, I am not sure that I really fully understand your question, the findings of the District Court is that there is no planned program or other major Federal action, indeed.

William J. Brennan, Jr.:

(Inaudible)

Francis M. Shea:

Yes, and this was conceded by opposing counsel.

William J. Brennan, Jr.:

We agree with that then we do not have —

Francis M. Shea:

I do not see what is left and I do not see how that is gotten around.

Byron R. White:

Well, it maybe that if one project necessarily determines the shape or form or outcome of another that having a plan for this project necessarily means you have a plan for the other one.

Francis M. Shea:

If they are integrated, certain.

Byron R. White:

What is exactly the question?

Francis M. Shea:

Is that the question?

John Paul Stevens:

Do we have to decide whether or not they are integrated?

Francis M. Shea:

Well, I think that, you know this in the first place —

John Paul Stevens:

Certainly no, but Judge McKinnon apparently thought that he had to decide if you want you can do it.

Francis M. Shea:

In the first place you know, there is a finding that so far as these proposals of the private companies are concerned that they are not being constructed or carried out pursuant to any integrated plan, and also that the plans that these projects of the individual companies are not integrated or interrelated.

Francis M. Shea:

Now, if I may try to get at it but, if I do not think I have been responsive, that is finding 31, if I may try to get at it in this way, if the Court pleases, it seems to me that unless you can find a proposal, unless you can find a proposal, there is no basis for acquiring an impact statement and the way they sought to get a proposal was to say that all of this is interrelated, I do not think — in order to be dependent on what the interrelation was the fact it is interrelated, does not make it a single project.

It seems to me that the tests which have been made by the Courts of Appeals are the proper tests.

That is if you go forward with this particular proposal, are you committed to something greater or does it have independent utility.

Now, it seems to me that I thought what Judge Mckinnon was saying was that there is no any kind of such inter relation as they are talking about.

Warren E. Burger:

Necessarily (Inaudible)

Francis M. Shea:

Right.

Warren E. Burger:

It is possible but not necessarily so?

Francis M. Shea:

Well, really not on 90,000 square miles is not even possible.

Warren E. Burger:

Well, it is possible that some of them near to each other?

Francis M. Shea:

Oh, but that is a very different manner, that is a very different manner.

It might be that as Mr. Justice White suggested it might be that you have a particular proposal which if you carry it out, you are committed to carrying out something more.

Byron R. White:

On the other hand (Inaudible) a series of projects were wholly unrelated, if the Interior Department actually had a plan for the development or proposal of the whole area, there would have to have an area impact statement?

Francis M. Shea:

That raises I think somewhat difficult questions.

I would be dubious about that because does that plan —

Byron R. White:

It is a proposal.

Francis M. Shea:

If they have such a plan with that to remember, it is not just there must be a proposal from major Federal action but it must significantly effect the environment.

So that you would have to find not only that it was a proposal for major Federal action but that it significantly affected the environment.

Byron R. White:

But at least there would be something that was not there before if you got a proposal?

Francis M. Shea:

Yes.

Byron R. White:

Before in your area—

Francis M. Shea:

But we do not have this, obviously.

But this would raise — you know.

I cannot just–

Byron R. White:

The Court of Appeals is against on you on that.

Francis M. Shea:

On what?

Byron R. White:

On they say over, they say that they apparently they think the possibility is that the Interior Department has gone far enough along the line and towards a proposal to trigger the need for an instance.

Francis M. Shea:

Well, what they say is all the actions have taken place in the past and all of the pending applications which may or may not be approved that, this in our view accept the Court constitutes major Federal action and thus it goes on to say.

Thus, I do not know how it follows– .

William J. Brennan, Jr.:

For the purposes of the statute, a proposal whether you call it a program, a plan or I think the language was or nothing at all.

Francis M. Shea:

Yes, that is right.

Francis M. Shea:

And then it goes on to say that thus, but all it held was that there is contemplation that they contemplate controlling.

It is the next, very next sentence in this, Justice White.

They contemplate controlling the development of the region.

Well, Mr. Chief Justice, I see that I have a red light.

Warren E. Burger:

Thank you gentleman.

The case is submitted.