U.S. Supreme Court Kleppe v. Sierra Club, 427
U.S. 390 (1976) Kleppe v. Sierra Club No. 75-552 Argued April 28, 1976 Decided June 28, 1976 427
U.S. 390 ast|>* 427
U.S. 390 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus Section 102(2)(C) of the National Environmental Policy Act of
1969 (NEPA) requires that all federal agencies include an
environmental impact statement (EIS)

															"in every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the quality
of the human environment."

															Respondent environmental organizations, alleging a widespread
interest in the rich coal reserves of the "Northern Great Plains
region" (embracing parts of Wyoming, Montana, North Dakota, and
South Dakota) and a threat from coal-related operations to their
members' enjoyment of the region's environment, brought suit
against petitioner officials of the Department of the Interior and
other federal agencies responsible for issuing coal leases,
approving mining plans, and taking other actions to enable private
companies and public utilities to develop coal reserves on
federally owned or controlled land. Respondents claimed that
petitioners could not allow further development of coal reserves in
the region without preparing a comprehensive EIS under § 102(2)(C)
on the entire region, and sought declaratory and injunctive relief.
The District Court, on the basis of extensive findings of fact and
conclusions of law, held that the complaint stated no claim for
relief, and granted petitioners' motion for summary judgment. While
accepting the District Court's findings of fact, the Court of
Appeals held, on the basis of the soon-forthcoming interim report
of the Northern Great Plains Resources Program (NGPRP) (a study of
the potential environmental impact from resource development in
Montana, Wyoming, North Dakota, South Dakota, and Nebraska) as well
as other such studies of areas either inclusive of or included
within the Northern Great Plains region, that petitioners
"contemplated" a regional plan or program, and reversed and
remanded with instructions to petitioners to inform the Page 427 U. S. 391 District Court of their role in the further development of the
region within 30 days after the NGPRP interim report issued, and
that, if they decided to control that development, an EIS would be
required. The Court of Appeals also enjoined the Department of the
Interior's approval of mining plans in one section of the region
for which an EIS already had been prepared. Held: 1. The NEPA does not require petitioners to prepare an EIS on
the entire Northern Great Plains region. Petitioners have proposed
no legislation on the region, and there is no evidence in the
record of any proposal for major federal action with respect to the
region, but rather it appears that all proposals have been for
actions of either local or national scope. Unless there is a
proposal for a regional plan of development, it is not practical to
prepare a regional EIS, since, absent such a plan, it is impossible
to predict the level of coal-related activity that will occur in
the region, and thus to analyze the environmental consequences and
the resource commitments involved, and alternatives to, such
activity. Pp. 427 U. S.
398 -402.

															2. The Court of Appeals erred in both its factual assumptions
that the several studies undertaken by petitioners represented
attempts to control development on a regional scale, and in its
interpretation of the NEPA. There is nothing in the record to
indicate that the NGPRP was aimed toward a regional plan or
program, but even if the record justified such a finding, the Court
of Appeals' legal conclusion cannot be squared with the NEPA,
which, in § 102(2)(C), clearly states that an EIS is not required
until an agency makes a recommendation or report on a proposal for
major federal action. The Court of Appeals had no authority to
depart from the statutory language and, by a balancing of
court-devised factors, determine a point at which an EIS should be
prepared. Pp. 427 U. S.
403 -406.

															3. Assuming that the Court of Appeals' theory about
"contemplation" of regional action would permit a court to require
pre-proposal preparation of an EIS, that court's injunction against
approval of the mining plans in one part of the region nevertheless
would have been error, since, on the court's own terms, there was,
in fact, no harm, and thus no ground for the injunction. Pp. 427 U. S.
407 -408.

															4. Respondents' contention as to the relationships of all
proposed coal-related projects in the Northern Great Plains region
does not require that petitioners prepare one comprehensive EIS Page 427 U. S. 392 covering such projects before proceeding to approve specific
pending applications. Absent a showing that petitioners acted
arbitrarily in refusing to prepare one comprehensive EIS on the
entire region, it must be assumed that the responsible federal
agencies have exercised appropriately their discretion to resolve
the technical issue involved in determining the region, if any,
with respect to which a comprehensive EIS covering several
proposals is necessary. Pp. 427 U. S.
408 -414.

															169 U.S.App.D.C. 20, 514 F.2d 856, reversed and remanded.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ.,
joined. MARSHALL, J., filed an opinion concurring in part and
dissenting in part, in which BRENNAN, J., joined, post, p. 427 U. S.
415 . Page 427 U. S. 394 MR. JUSTICE POWELL delivered the opinion of the Court.

															Section 102(2)(C) of the National Environmental Policy Act of
1969 [ Footnote 1 ] (NEPA)
requires that all federal agencies include a detailed statement of
environmental consequences -- known as an environmental impact
statement --

															"in every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the quality
of the human environment."

															42 U.S.C. § 4332(2)(C). The United States Court of Appeals for
the District of Columbia Circuit held that official of the
Department of the Interior (Department) and certain other federal
agencies must take additional steps under this section, beyond
those already taken, before allowing further development of federal
coal reserves in a specific area of the country. For the reasons
set forth, we reverse. I Respondents, several organizations concerned with the
environment, brought this suit in July, 1973, in the United States
District Court for the District of Columbia. [ Footnote 2 ] The defendants in the suit,
petitioners here, were the officials Page 427 U. S. 395 of the Department and other federal agencies responsible for
issuing coal leases, approving mining plans, granting
rights-of-way, and taking the other actions necessary to enable
private companies and public utilities to develop coal reserves on
land owned or controlled by the Federal Government. Citing
widespread interest in the reserves of a region identified as the
"Northern Great Plains region," and an alleged threat from
coal-related operations to their members' enjoyment of the region's
environment, respondents claimed that the federal officials could
not allow further development without preparing a "comprehensive
environmental impact statement" under § 102(2)(C) on the entire
region. They sought declaratory and injunctive relief.

															The District Court, on the basis of extensive findings of fact
and conclusions of law, held that the complaint stated no claim for
relief and granted the petitioners' motions for summary judgment.
[ Footnote 3 ] Respondents
appealed. Shortly after oral argument but before issuing an opinion
on the merits, the Court of Appeals in January, 1975, issued an
injunction -- over a dissent -- against the Department's approval
of four mining plans in the Powder River Coal Basin, which is one
small but coal-rich section of the region that concerns
respondents. 166 U.S.App.D.C. 200, 509 F.2d 533. An impact
statement had been prepared on these plans, but it had not been
before the District Court and was not before the Court of Appeals.
In June, 1975, the Court of Appeals ruled on the merits and, for
reasons discussed below, reversed the District Court and remanded
for further proceedings. Page 427 U. S. 396 169 U.S.App.D.C. 20, 514 F.2d 856. The court continued its
injunction in force.

															The federal officials petitioned for writ of certiorari on
October 9, 1975. On November 7, the Court of Appeals refused to
dissolve its injunction, [ Footnote
4 ] and, a week later, petitioners moved this Court for a stay.
On January 12, 1976, we stayed the injunction and granted the
petitions for certiorari. 423 U.S. 1047. We have been informed that
shortly thereafter the Secretary of the Interior (Secretary)
approved the four mining plans in the Powder River Coal Basin that
had been stayed by the injunction. II The record and the opinions of the courts below contain
extensive facts about coal development and the geographic area
involved in this suit. The facts that we consider essential,
however, can be stated briefly.

															The Northern Great Plains region identified in respondents'
complaint encompasses portions of four States -- northeastern
Wyoming, eastern Montana, western North Dakota, and western South
Dakota. There is no dispute about its richness in coal, nor about
the waxing interest in developing that coal, nor about the crucial
role the federal petitioners will play due to the significant
percentage of the coal to which they control access. The Department
has initiated, in this decade, three studies in areas either
inclusive of or included within this Page 427 U. S. 397 region. The North Central Power Study was addressed to the
potential for coordinated development of electric power in an area
encompassing all or part of 15 States in the North Central United
States. It aborted in 1972 for lack of interest on the part of
electric utilities. The Montana-Wyoming Aqueducts Study, intended
to recommend the best use of water resources for coal development
in southeastern Montana and northeastern Wyoming, was suspended in
1972 with the initiation of the third study, the Northern Great
Plains Resources Program (NGPRP).

															While the record does not reveal the degree of concern with
environmental matters in the first two studies, it is clear that
the NGPRP was devoted entirely to the environment. It was carried
out by an interagency, federal-state task force with public
participation, and was designed "to assess the potential social,
economic and environmental impacts" from resource development in
five States -- Montana, Wyoming, South Dakota, North Dakota, and
Nebraska. [ Footnote 5 ] Its
primary objective was "to provide an analytical and informational
framework for policy and planning decisions at all levels of
government" [ Footnote 6 ] by
formulating several "scenarios" showing the probable consequences
for the area's environment and culture from the various possible
techniques and levels of resource development. The final interim
report of the NGPRP was issued August 1, 1975, shortly after the
decision of the Court of Appeals in this case.

															In addition, since 1973, the Department has engaged in a
complete review of its coal leasing program for the entire Nation.
On February 17 of that year, the Secretary announced the review and
announced also that, during study, a "short-term leasing policy"
would prevail Page 427 U. S. 398 under which new leasing would be restricted to narrowly defined
circumstances, and even then allowed only when an environmental
impact statement had been prepared if required under NEPA.
[ Footnote 7 ] The purpose of the
program review was to study the environmental impact of the
Department's entire range of coal-related activities and to develop
a planning system to guide the national leasing program. The impact
statement, known as the "Coal Programmatic EIS," went through
several drafts before issuing in final form on September 19, 1975
-- shortly before the petitions for certiorari were filed in this
case. The Coal Programmatic EIS proposed a new leasing program
based on a complex planning system called the Energy Minerals
Activity Recommendation System (EMARS), and assessed the
prospective environmental impact of the new program as well as the
alternatives to it. We have been informed by the parties to this
litigation that the Secretary is in the process of implementing the
new program. [ Footnote 8 ]

															Against this factual background, we turn now to consider the
issues raised by this case in the status in which it reached this
Court. III The major issue remains the one with which the suit began:
whether NEPA requires petitioners to prepare an environmental
impact statement on the entire Northern Great Plains region.
[ Footnote 9 ] Petitioners,
arguing the negative, Page 427 U. S. 399 rely squarely upon the facts of the case and the language of §
102(2)(C) of NEPA. We find their reliance well placed.

															As noted in the first sentence of this opinion, § 102(2)(C)
requires an impact statement

															"in every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the quality
of the human environment."

															Since no one has suggested that petitioners have proposed
legislation on respondents' region, the controlling phrase in this
section of the Act, for this case, is "major Federal actions."
Respondents can prevail only if there has been a report or
recommendation on a proposal for major federal action with respect
to the Northern Great Plains region. Our statement of the relevant
facts shows there has been none; instead, all proposals are for
actions of either local or national scope.

															The local actions are the decisions by the various petitioners
to issue a lease, approve a mining plan, issue a right-of-way
permit, or take other action to allow private activity at some
point within the region identified by respondents. Several Courts
of Appeals have held that an impact statement must be included in
the report or recommendation on a proposal for such action if the
private activity to be permitted is one "significantly affecting
the quality of the human environment" within the meaning of §
102(2)(C). See, e.g., Scientists' Institute for Public
Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 404 05, 481
F.2d 1079, 1088-1089 (1973); Davis v. Morton, 469 F.2d 593
(CA10 1972). Page 427 U. S. 400 The petitioners do not dispute this requirement in this case,
and indeed have prepared impact statements on several proposed
actions of this type in the Northern Great Plains during the course
of this litigation. [ Footnote
10 ] Similarly, the federal petitioners agreed at oral argument
that § 102(2)(C) required the Coal Programmatic EIS that was
prepared in tandem with the new national coal leasing program and
included as part of the final report on the proposal for adoption
of that program. Tr. of Oral Arg. 9. Their admission is well made,
for the new leasing program is a coherent plan of national scope,
and its adoption surely has significant environmental
consequences.

															But there is no evidence in the record of an action or a
proposal for an action of regional scope. The District Court, in
fact, expressly found that there was no existing or proposed plan
or program on the part of the Federal Government for the regional
development of the area described in respondents' complaint. It
found also that the three studies initiated by the Department in
areas either included within or inclusive of respondents' region --
that is, the Montana-Wyoming Aqueducts Study, the North Central
Power Study, and the Page 427 U. S. 401 NGPRP -- were not parts of any plan or program to develop or
encourage development of the Northern Great Plains. That court
found no evidence that the individual coal development projects
undertaken or proposed by private industry and public utilities in
that part of the country are integrated into a plan or otherwise
interrelated. These findings were not disturbed by the Court of
Appeals, and they remain fully supported by the record in this
Court. [ Footnote 11 ] Quite
apart from the fact that the statutory language requires an impact
statement only in the event of a proposed action, [ Footnote 12 ] respondents' desire for a
regional environmental impact statement cannot be met for practical
reasons. In the absence of a proposal for a regional plan of
development, there is nothing that could be the subject of the
analysis envisioned by the statute for an impact statement. Section
102(2)(C) requires that an impact statement contain, in essence, a
detailed statement of the expected adverse environmental
consequences of an action, the resource commitments involved Page 427 U. S. 402 in it, and the alternatives to it. [ Footnote 13 ] Absent an overall plan for regional
development, it is impossible to predict the level of coal-related
activity that will occur in the region identified by respondents,
and thus impossible to analyze the environmental consequences and
the resource commitments involved in, and the alternatives to, such
activity. A regional plan would define fairly precisely the scope
and limits of the proposed development of the region. Where no such
plan exists, any attempt to produce an impact statement would be
little more than a study along the lines of the NGPRP, containing
estimates of potential development and attendant environmental
consequences. There would be no factual predicate for the
production of an environmental impact statement of the type
envisioned by NEPA. [ Footnote
14 ] Page 427 U. S. 403 IV A The Court of Appeals, in reversing the District Court, did not
find that there was a regional plan or program for development of
the Northern Great Plains region. It accepted all of the District
Court's findings of fact, but concluded nevertheless that the
petitioners "contemplated" a regional plan or program. The court
thought that the North Central Power Study, the Montana-Wyoming
Aqueducts Study, and the NGPRP all constituted "attempts to control
development" by individual companies on a regional scale. It also
concluded that the interim report of the NGPRP, then expected to be
released at any time, would provide the petitioners with the
information needed to formulate the regional plan they had been
"contemplating." The Court therefore remanded with instructions to
the petitioners to inform the District Court of their role in the
further development of the region within 30 days after the NGPRP
interim report issued; if they decided to control that development,
an impact statement would be required.

															We conclude that the Court of Appeals erred in both its factual
assumptions and its interpretation of NEPA. We think the court was
mistaken in concluding, on the record before it, that the
petitioners were "contemplating" a regional development plan or
program. It considered the several studies undertaken by the
petitioners to represent attempts to control development on a
regional scale. This conclusion was based on a finding by the
District Court that those studies, as well as the new national coal
leasing policy, were

															"attempts to control development by individual companies in a
manner consistent with the policies and procedures of the
National Page 427 U. S. 404 Environmental Policy Act of 1969."

															But, in context, that finding meant only that the named studies
were efforts to gain background environmental information for
subsequent application in the decisionmaking with respect to
individual coal-related projects. This is the sense in which the
District Court spoke of controlling development consistently with
NEPA. Indeed, in the same paragraph containing the language relied
upon by the Court of Appeals, the District Court expressly found
that the studies were not part of a plan or program to develop or
encourage development. See supra at 427 U. S.
400 -401.

															Moreover, at the time, the Court of Appeals ruled there was no
indication in the record that the NGPRP was aimed toward a regional
plan or program, and subsequent events have shown that this was not
its purpose. The interim report of the study, issued shortly after
the Court of Appeals ruled, described the effects of several
possible rates of coal development, but stated in its preface that
the alternatives "are for study and comparison only; they do not
represent specific plans or proposals." All parties agreed in this
Court that there still exists no proposal for a regional plan or
program of development. See Tr. of Oral Arg. 48.

															Even had the record justified a finding that a regional program
was contemplated by the petitioners, the legal conclusion drawn by
the Court of Appeals cannot be squared with the Act. The court
recognized that the mere "contemplation" of certain action is not
sufficient to require an impact statement. But it believed the
statute nevertheless empowers a court to require the preparation of
an impact statement to begin at some point prior to the formal
recommendation or report on a proposal. The Court of Appeals
accordingly devised its own four-part "balancing" test for
determining when, during the contemplation of a plan or Page 427 U. S. 405 other type of federal action, an agency must begin a statement.
The factors to be considered were identified as the likelihood and
imminence of the program's coming to fruition, the extent to which
information is available on the effects of implementing the
expected program and on alternatives thereto, the extent to which
irretrievable commitments are being made and options precluded "as
refinement of the proposal progresses," and the severity of the
environmental effects should the action be implemented.

															The Court of Appeals thought that, as to two of these factors --
the availability of information on the effects of any regional
development program, and the severity of those effects -- the time
already was "ripe" for an impact statement. It deemed the record
unclear, however, as to the likelihood of the petitioners' actually
producing a plan to control the development, and surmised that
irretrievable commitments were being avoided because petitioners
had ceased approving most coal-related projects while the NGPRP
study was underway. The court also thought that the imminent
release of the NGPRP interim report would provide the officials
with sufficient information to define their role in development of
the region, and it believed that, as soon as the NGPRP was
completed, the petitioners would begin approving individual
projects in the region, thus permitting irrevocable commitments of
resources. It was for this reason that the court, in its remand,
required the petitioners to report to the District Court their
decision on the federal role with respect to the Northern Great
Plains as a region within 30 days after issuance of the NGPRP
report.

															The Court's reasoning and action find no support in the language
or legislative history of NEPA. The statute clearly states when an
impact statement is required, and mentions nothing about a
balancing of factors. Rather, as we noted last Term, under the
first Page 427 U. S. 406 sentence of § 102(2)(C), the moment at which an agency must have
a final statement ready "is the time at which it makes a
recommendation or report on a proposal for federal
action." Aberdeen Rockfish R. Co. v. SCRAP, 422 U.
S. 289 , 422 U. S. 320 (1975) ( SCRAP II ) (emphasis in original). The procedural
duty imposed upon agencies by this section is quite precise, and
the role of the courts in enforcing that duty is similarly precise.
A court has no authority to depart from the statutory language and,
by a balancing of court-devised factors, determine a point during
the germination process of a potential proposal at which an impact
statement should be prepared. Such an assertion of judicial
authority would leave the agencies uncertain as to their procedural
duties under NEPA, would invite judicial involvement in the
day-to-day decisionmaking process of the agencies, and would invite
litigation. As the contemplation of a project and the accompanying
study thereof do not necessarily result in a proposal for major
federal action, it may be assumed that the balancing process
devised by the Court of Appeals also would result in the
preparation of a good many unnecessary impact statements. [ Footnote 15 ] Page 427 U. S. 407 B Assuming that the Court of Appeals' theory about "contemplation"
of regional action would permit a court to require pre-proposal
preparation of an impact statement, the court's injunction against
the Secretary's approval of the four mining plans in the Powder
River Basin nevertheless would have been error. The District Court
had found that respondents would not have been entitled to an
injunction against any individual projects even if their claim of
the need for a regional impact statement had been valid, because
they had shown no irreparable harm that would result absent such an
injunction and the record disclosed that irreparable harm would
result to the intervenors who sought to carry out their business
ventures and to the public who depended upon their operations. The
Court of Appeals made no finding as to the equities at the time it
originally entered the injunction; when it continued the injunction
following its decision on the merits, it stated only that the
"harm" justifying an injunction "matured" whenever an impact
statement is due and not filed. But, on the Court of Appeals' own
terms, there was, in fact, no harm. First, the Court of Appeals
itself held that no regional impact statement was due at that
moment, and it was uncertain whether one ever would be due. Second,
there had been filed a comprehensive impact statement on the
proposed Powder River Basin mining plans themselves, and its
adequacy had not been challenged either before the District Court
or the Court of Appeals in this case, or anywhere else. [ Footnote 16 ] Thus, in simple
equitable terms, there were Page 427 U. S. 408 no grounds for the injunction: the District Court's finding of
irreparable injury to the intervenors and to the public still
stood, and there were -- on the Court of Appeals' own terms -- no
countervailing equities. V Our discussion thus far has been addressed primarily to the
decision of the Court of Appeals. It remains, however, to consider
the contention now urged by respondents. They have not attempted to
support the Court of Appeals' decision. Instead, respondents renew
an argument they appear to have made to the Court of Appeals, but
which that court did not reach. Respondents insist that, even
without a comprehensive federal plan for the development of the
Northern Great Plains, a "regional" impact statement nevertheless
is required on all coal-related projects in the region because they
are intimately related.

															There are two ways to view this contention. First, it amounts to
an attack on the sufficiency of the impact statements already
prepared by the petitioners on the coal-related projects that they
have approved or stand ready to approve. As such, we cannot
consider it in this proceeding, for the case was not brought as a
challenge to a particular impact statement and there is no impact
statement in the record. [ Footnote 17 ] It also is possible to view the Page 427 U. S. 409 respondents' argument as an attack upon the decision of the
petitioners not to prepare one comprehensive impact statement on
all proposed projects in the region. This contention properly is
before us, for the petitioners have made it clear they do not
intend to prepare such a statement.

															We begin by stating our general agreement with respondents'
basic premise that § 102(2)(C) may require a comprehensive impact
statement in certain situations where several proposed actions are
pending at the same time. NEPA announced a national policy of
environmental protection and placed a responsibility upon the
Federal Government to further specific environmental goals by "all
practicable means, consistent with other essential considerations
of national policy." § 101(b), 42 U.S.C. § 4331(b). Section
102(2)(C) is one of the "action-forcing" provisions intended as a
directive to "all agencies to assure consideration of the
environmental impact of their actions in decisionmaking."
Conference Report on NEPA, 115 Cong.Rec. 40416 (1969). [ Footnote 18 ] By requiring an impact
statement, Congress intended to assure such consideration during
the development of a proposal or -- as in this case -- during the
formulation of a position on a proposal submitted by private
parties. [ Footnote 19 ] A
comprehensive impact statement may be necessary in some cases for
an agency to meet Page 427 U. S. 410 this duty. Thus, when several proposals for coal-related actions
that will have cumulative or synergistic environmental impact upon
a region are pending concurrently before an agency, their
environmental consequences must be considered together. [ Footnote 20 ] Only through
comprehensive consideration of pending proposals can the agency
evaluate different courses of action. [ Footnote 21 ]

															Agreement to this extent with respondents' premise, however,
does not require acceptance of their conclusion that all proposed
coal-related actions in the Northern Great Plains region are so
"related" as to require their analysis in a single comprehensive
impact statement. Respondents informed us that the Secretary
recently adopted an approach to impact statements on coal-related
actions that provides:

															"A. As a general proposition, and as determined by the
Secretary, when action is proposed involving Page 427 U. S. 411 coal development such as issuing several coal leases or
approving mining plans in the same region, such actions will be
covered by a single EIS, rather than by multiple statements. In
such cases, the region covered will be determined by basin
boundaries, drainage areas, areas of common reclamation problems,
administrative boundaries, areas of economic interdependence, and
other relevant factors."

															Brief for Respondents 20a. At another point, the document
containing the Secretary's approach [ Footnote 22 ] states that a "regional EIS" will be
prepared

															"if a series of proposed actions with interrelated impacts are
involved . . . unless a previous EIS has sufficiently analyzed the
impacts of the proposed action(s)." Id. at 20a-21a. Thus, the Department has decided to
prepare comprehensive impact statements of the type contemplated by
§ 102(2)(C), although it has not Page 427 U. S. 412 deemed it appropriate to prepare such a statement on all
proposed actions in the region identified by respondents.

															Respondents conceded at oral argument that, to prevail, they
must show that petitioners have acted arbitrarily in refusing to
prepare one comprehensive statement on this entire region, and we
agree. Tr. of Oral Arg. 67. The determination of the region, if
any, with respect to which a comprehensive statement is necessary
requires the weighing of a number of relevant factors, including
the extent of the interrelationship among proposed actions and
practical considerations of feasibility. Resolving these issues
requires a high level of technical expertise, and is properly left
to the informed discretion of the responsible federal agencies. Cf. SCRAP II, 422 U.S. at 422 U. S.
325 -326. Absent a showing of arbitrary action, we must
assume that the agencies have exercised this discretion
appropriately. Respondents have made no showing to the
contrary.

															Respondents' basic argument is that one comprehensive statement
on the Northern Great Plains is required because all coal-related
activity in that region is "programmatically," "geographically,"
and "environmentally" related. Both the alleged "programmatic"
relationship and the alleged "geographic" relationship resolve,
ultimately, into an argument that the region is proper for a
comprehensive impact statement because the petitioners themselves
have approached environmental study in this area on a regional
basis. [ Footnote 23 ]
Respondents point primarily to the NGPRP, which they claim -- and
petitioners Page 427 U. S. 413 deny -- focused on the region described in the complaint.
[ Footnote 24 ] The precise
region of the NGPRP is unimportant, for its irrelevance to the
delineation of an appropriate area for analysis in a comprehensive
impact statement has been well stated by the Secretary:

															"Resource studies [like the NGPRP] are one of many analytical
tools employed by the Department to inform itself as to general
resource availability, resource need and general environmental
considerations so that it can intelligently determine the scope of
environmental analysis and review specific actions it may take.
Simply put, resource studies are a prelude to informed agency
planning, and provide the data base on which the Department may
decide to take specific actions for which impact statements are
prepared. The scope of environmental impact statements seldom
coincide with that of a given resource study, since the statements
evolve from specific proposals for federal action while the studies
simply provide an educational backdrop."

															Affidavit of Oct. 28, 1975, App. 191. As for the alleged
"environmental" relationship, respondents contend that the
coal-related projects "will produce a wide variety of cumulative
environmental impacts" throughout the Northern Great Plains region.
They described them as follows: diminished availability of water,
air and water pollution, increases in population and industrial
densities, and perhaps even claimatic changes. Cumulative
environmental impacts are, indeed, what require a comprehensive
impact statement. Page 427 U. S. 414 But determination of the extent and effect of these factors, and
particularly identification of the geographic area within which
they may occur, is a task assigned to the special competency of the
appropriate agencies. Petitioners dispute respondents' contentions
that the interrelationship of environmental impacts is region-wide,
[ Footnote 25 ] and, as
respondents' own submissions indicate, petitioners appear to have
determined that the appropriate scope of comprehensive statements
should be based on basins, drainage areas, and other factors. See supra at 427 U. S.
410 -411. We cannot say that petitioners' choices are
arbitrary. Even if environmental interrelationships could be shown
conclusively to extend across basins and drainage areas, practical
considerations of feasibility might well necessitate restricting
the scope of comprehensive statements.

															In sum respondents' contention as to the relationships between
all proposed coal-related projects in the Northern Great Plains
region does not require that petitioners prepare one comprehensive
impact statement covering all before proceeding to approve specific
pending applications. [ Footnote
26 ] As we already have determined that there Page 427 U. S. 415 exists no proposal for region-wide action that could require a
regional impact statement, the judgment of the Court of Appeals
must be reversed, and the judgment of the District Court reinstated
and affirmed. The case is remanded for proceedings consistent with
this opinion. So ordered. * Together with No. 75-561, American Electric Power System
et al. v. Sierra Club et al., also on certiorari to the same
court.

															[ Footnote 1 ]

															83 Stat. 852, 42 U.S.C. § 4321 et seq. [ Footnote 2 ]

															Respondents asserted jurisdiction under 5 U.S.C. §§ 701-706, 28
U.S.C. § 1331(a), and 28 U.S.C. § 1361.

															[ Footnote 3 ]

															Prior to ruling on motions for summary judgment, the District
Court permitted intervention as defendants by several public
utilities, coal mining companies, and natural gas companies, by an
Indian tribe, and by an individual rancher. Most of these
intervenors have joined in a separate petition for certiorari in
No. 75561, which is decided together with this case.

															[ Footnote 4 ]

															On the same date, the Court of Appeals remanded to the District
Court respondents' motion for modification of the injunction to
prohibit the Secretary from approving a new mining plan submitted
by a coal company, not then a party to the suit, that had been
mining coal on leased federal land since 1972. The new mining plan
was covered by an impact statement. The Secretary of the Interior
approved the plan on November 11. On November 14, the District
Court partially enjoined the company from mining under the approved
plan.

															[ Footnote 5 ]

															Department of Interior News Release (Oct. 3, 1972), App.
132.

															[ Footnote 6 ]

															NGPRP outline, App. 136.

															[ Footnote 7 ]

															Department of Interior News Release (Feb. 17, 1973), App.
125-127.

															[ Footnote 8 ]

															The petitioners in No. 75-561 have included in their brief a
press release by the Secretary announcing the new program, and a
detailed description of the program. Pending full operation
thereof, the short-term leasing policy remains in effect.

															[ Footnote 9 ]

															In the District Court respondents also contended that
petitioners had failed to comply with §§ 102(2)(A) and (D), 42
U.S.C. §§ 4332(2)(A) and (D), which require an agency to use a
specified approach to decisionmaking and to describe alternatives
when a proposal involves unresolved conflicts concerning uses of
resources. (Subparagraph (D) was redesignated subparagraph (E) by
Pub.L. 94-83, 89 Stat. 424.) The District Court ruled against
respondents on the count based on these subparagraphs, and it has
dropped out of the case.

															[ Footnote 10 ]

															In an affidavit submitted in support of the application for a
stay of the Court of Appeals' injunction, the Secretary described
four impact statements completed by the petitioners on coal-related
activity in Montana and Wyoming. One was the multi-project
statement on the Powder River Coal Basin that was the subject of
that injunction. See supra at 427 U. S.
395 -396. Another was on the single mining plan
subsequently brought under the injunction as modified by the
District Court. See n 4, supra. A third covered one leased tract, and apparently
was occasioned by an application for approval of a new mining plan
on the tract. The fourth, on another single mining plan, has been
the subject of litigation, on the merits of which we intimate no
view. See Cady v. Morton, 527 F.2d 786 (CA9 1975).

															[ Footnote 11 ]

															The Secretary's affidavit in support of the application for a
stay of the Court of Appeals' injunction confirms that the
situation regarding regional planning or a regional development
program has not changed. See App. 195-196.

															[ Footnote 12 ]

															The legislative history of NEPA fully supports our reading of §
102(2)(C) as to when an impact statement is required. The bill
passed by the House contained no provision comparable to §
102(2)(C) of the Act. The bill that was reported to and, as
amended, passed by the Senate did contain the forerunner of §
102(2)(C). The committee report made clear that the impact
statement was required in conjunction with specific proposals for
action. S.Rep. No. 91-296, p. 20 (1969). After the House-Senate
Conference, the managers on the part of the House, in a separate
statement, explained § 102(2)(C) in language that tracks the
statute on the requirement of a proposal. H.R.Conf.Rep. No. 91-765,
p. 8 (1969). See also 115 Cong.Rec. 40420 (1969).

															[ Footnote 13 ]

															Section 102(2)(C) states that the statement must be a detailed
statement on --

															"(i) the environmental impact of the proposed
action, "

															"(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,"

															"(iii) alternatives to the proposed action, "

															"(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity, and"

															"(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it
be implemented."

															(Emphasis added.)

															[ Footnote 14 ]

															In contrast, with both an individual coal-related action and the
new national coal leasing program, an agency deals with specific
action of known dimensions. With appropriate allowances for the
inexactness of all predictive ventures, the agency can analyze the
environmental consequences and describe alternatives as envisioned
by § 102(2)(C). Of course, since the kind of impact statement
required depends upon the kind of " federal action' being
taken," Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289 , 422 U. S. 322 (1975), the statement on a proposed mining plan or a lease
application may bear little resemblance to the statement on the
national coal-leasing program. Nevertheless, in each case, the
bounds of the analysis are defined, which is not the case with coal
development in general in the region identified by
respondents. [ Footnote 15 ]

															This is not to say that § 102(2)(C) imposes no duties upon an
agency prior to its making a report or recommendation on a proposal
for action. The section states that, prior to preparing the impact
statement the responsible official

															"shall consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved."

															Thus, the section contemplates a consideration of environmental
factors by agencies during the evolution of a report or
recommendation on a proposal. But the time at which a court enters
the process is when the report or recommendation on the proposal is
made, and someone protests either the absence or the adequacy of
the final impact statement. This is the point at which an agency's
action has reached sufficient maturity to assure that judicial
intervention will not hazard unnecessary disruption.

															[ Footnote 16 ]

															Even had the Court of Appeals determined that a regional impact
statement was due at that moment, it still would have erred in
enjoining approval of the four mining plans unless it had made a
finding that the impact statement covering them inadequately
analyzed the environmental impacts of, and the alternatives to,
their approval. So long as the statement covering them was
adequate, there would have been no reason to enjoin their approval
pending preparation of a broader regional statement; that broader
statement, when prepared, simply would have taken into
consideration the regional environmental effects of the four mining
plans once they were in operation, in determining the
permissibility of further coal-related operations in the region. See 427 U. S. infra. [ Footnote 17 ]

															Petitioners lodged with this Court a copy of the massive
six-volume impact statement on the projects in the Powder River
Coal Basin, but it is not part of the record.

															[ Footnote 18 ]

															The term "action-forcing" was applied to the provisions of what
became § 102(2) throughout their consideration by the Senate. See, e.g., S.Rep. No. 91-296, p. 9 (1969); 115 Cong.Rec.
40416, 40419 (1969).

															[ Footnote 19 ]

															The legislative history of the provision in the Senate, where it
originated and where it received the most attention, supports this
interpretation. See S.Rep. No. 91-296, supra, at
2, 20-21; 115 Cong.Rec. 29052-29053, 29055, 29058, 40416 (1969).
The Conference Report to the House is consistent. See id. at 40923-40928.

															[ Footnote 20 ]

															At some points in their brief, respondents appear to seek a
comprehensive impact statement covering contemplated projects in
the region as well as those that already have been proposed. The
statute, however, speaks solely in terms of proposed
actions; it does not require an agency to consider the
possible environmental impacts of less imminent actions when
preparing the impact statement on proposed actions. Should
contemplated actions later reach the stage of actual proposals,
impact statements on them will take into account the effect of
their approval upon the existing environment; and the condition of
that environment presumably will reflect earlier proposed actions
and their effects. Cf. n 26, infra. [ Footnote 21 ]

															Neither the statute nor its legislative history contemplates
that a court should substitute its judgment for that of the agency
as to the environmental consequences of its actions. See Scenic
Hudson Preservation Conference v. FPC, 453 F.2d 463, 481 (CA2
1971), cert. denied, 407 U. S. 926 (1972). The only role for a court is to insure that the agency has
taken a "hard look" at environmental consequences; it cannot
"interject itself within the area of discretion of the executive as
to the choice of the action to be taken." Natural Resources
Defense Council v. Morton, 148 U.S.App.D.C. 5, 16, 458 F.2d
827, 838 (1972).

															[ Footnote 22 ]

															The document is an "Executive Summary and Decision Document"
signed by the Secretary and dated December 16, 1975. The decision
as to impact statements is part of the implementation of the new
coal leasing policy based on staff recommendations following
release of the Coal Programmatic EIS. See supra at 427 U. S.
397 -398.

															Respondents contend that this document represents a significant
shift in Department policy since the start of this litigation, but
we disagree. Early in the litigation, the Department and three
other agencies prepared the comprehensive impact statement on
proposed actions in the Powder River Coal Basin, see supra at 427 U. S. 395 ;
its preface -- quoted by the District Court -- states that it
evaluated

															"the collective impact of the proposed actions and, insofar as
now possible, the impacts of potential future coal mining within
the geographic area."

															Moreover, the Secretary's consistent position, in affidavits
dating back to the District Court, has been that statements might
be prepared on regions or "subregions" once the Coal Programmatic
EIS was completed. While the affidavits did not, until the
application for a stay of the injunction, expressly predicate
preparation of such statements upon the pendency of several
proposals within the region or subregion, neither are they
inconsistent with such predication.

															[ Footnote 23 ]

															On the "programmatic" relationship, respondents also rely on the
assertion that all of the projects involve similar methods of
mining and converting the region's coal. Assuming this to be
correct, we do not think it significant.

															[ Footnote 24 ]

															They rely also on the North Central Power Study and the
Montana-Wyoming Aqueducts Study, but each covered an area different
from respondents' region and, moreover, it is not clear that either
was primarily an environmental study. See supra at 427 U. S.
397 .

															[ Footnote 25 ]

															For example, respondents assert that coal mines in the region
are environmentally interrelated because opening one reduces the
supply of water in the region for others. Petitioners contend that
the water supply for each aquifer or basin within the region -- of
which there are many -- is independent.

															Moreover, petitioners state in their reply brief that few active
or proposed mines in respondents' region are located within 50
miles of any other mine, and there are only 30 active or proposed
mines in the entire 90,000 square miles of the region.

															[ Footnote 26 ]

															Nor is it necessary that petitioners always complete a
comprehensive impact statement on all proposed actions in an
appropriate region before approving any of the projects. As
petitioners have emphasized, and respondents have not disputed,
approval of one lease or mining plan does not commit the Secretary
to approval of any others; nor, apparently, do single approvals by
the other petitioners commit them to subsequent approvals. Thus, an
agency could approve one pending project that is fully covered by
an impact statement, then take into consideration the environmental
effects of that existing project when preparing the comprehensive
statement on the cumulative impact of the remaining proposals. Cf. n 20, supra. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
concurring in part and dissenting in part.

															While I agree with much of the Court's opinion, I must dissent
from 427 U. S. which holds that the federal courts may not remedy violations of
the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852,
42 U.S.C. § 4321 et seq. -- no matter how blatant -- until
it is too late for an adequate remedy to be formulated. As the
Court today recognizes, NEPA contemplates agency consideration of
environmental factors throughout the decisionmaking process. Since
NEPA's enactment, however, litigation has been brought primarily at
the end of that process -- challenging agency decisions to act made
without adequate environmental impact statements or without any
statements at all. In such situations, the courts have had to
content themselves with the largely unsatisfactory remedy of
enjoining the proposed federal action and ordering the preparation
of an adequate impact statement. This remedy is insufficient
because, except by deterrence, it does nothing to further early
consideration of environmental factors. And, as Page 427 U. S. 416 with all after-the-fact remedies, a remand for preparation of an
impact statement after the basic decision to act has been made
invites post hoc rationalizations, cf. Citizens to
Preserve Overton Park v. Volpe, 401 U.
S. 402 , 401 U. S.
419 -420 (1971), rather than the candid and balanced
environmental assessments envisioned by NEPA. Moreover, the remedy
is wasteful of resources and time, causing fully developed plans
for action to be laid aside while an impact statement is
prepared.

															Nonetheless, until this lawsuit, such belated remedies were all
the federal courts had had the opportunity to impose under NEPA. In
this case, confronted with a situation in which, according to
respondents' allegations, federal agencies were violating NEPA
prior to their basic decision to act, the Court of Appeals for the
District of Columbia Circuit seized the opportunity to devise a
different and effective remedy. It recognized a narrow class of
cases -- essentially those where both the likelihood of eventual
agency action and the danger posed by nonpreparation of an
environmental impact statement were great -- in which it would
allow judicial intervention prior to the time at which an impact
statement must be ready. The Court today loses sight of the
inadequacy of other remedies and the narrowness of the category
constructed by the Court of Appeals, and construes NEPA so as to
preclude a court from ever intervening prior to a formal agency
proposal. This decision, which unnecessarily limits the ability of
the federal courts to effectuate the intent of NEPA, is mandated
neither by the statute nor by the various equitable considerations
upon which the Court relies. I The premises of the Court of Appeals' approach are not novel,
and indeed are rearmed by the Court today. Page 427 U. S. 417 Under § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), "the moment
at which an agency must have a final [environmental impact]
statement ready is the time at which it makes a
recommendation or report on a proposal for federal action.'" Ante at 427 U. S. 406 ,
quoting Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289 , 422 U. S. 320 (1975) (first emphasis added). Preparation of an impact statement,
particularly on a complicated project, takes a considerable amount
of time. Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U. S. 776 , 426 U. S. 789 n. 10 (1976); Sixth Annual Report, Council on Environmental Quality
639 (1975). Necessarily, if the statement is to be completed by the
time the agency makes its formal proposal to act, preparation must
begin substantially before the proposal must be ready. In this
litigation, for instance, the federal petitioners assert that a
statement on the region in which respondents are interested would
take more than three years to complete. Brief for Federal
Petitioners 28 n. 22. Accordingly, since it would violate NEPA for
the Government to propose a plan for regional development of the
Northern Great Plains without an accompanying environmental impact
statement, if the Government contemplates making such a proposal at
any time in the next three years it should already be working on
its impact statement. But an early start on the statement is more than a procedural
necessity. Early consideration of environmental consequences
through production of an environmental impact statement is the
whole point of NEPA, as the Court recognizes. The legislative
history of NEPA demonstrates that, "[b]y requiring an impact
statement, Congress intended to assure [environmental]
consideration during the development of a proposal. . . ." Ante at 427 U. S. 409 (emphasis added). Compliance with this duty allows the
decisionmaker to take environmental Page 427 U. S. 418 factors into account when he is making decisions, at a time when
he has an open mind and is more likely to be receptive to such
considerations. Thus, the final impact statement itself is but "the
tip of an iceberg, the visible evidence of an underlying planning
and decisionmaking process that is usually unnoticed by the
public." Sixth Annual Report, Council on Environmental Quality 628
(1975).

															Because an early start in preparing an impact statement is
necessary if an agency is to comply with NEPA, there comes a time
when an agency that fails to begin preparation of a statement on a
contemplated project is violating the law. It is this fact, which
is not disputed by the Court today, that was recognized by the
Court of Appeals and that formed the basis of its remedy. The Court
devised a four-part test to enable a reviewing court to determine
when judicial intervention might be proper in such cases. The
questions formulated by the Court of Appeals were:

															"How likely is the program to come to fruition, and how soon
will that occur? To what extent is meaningful information presently
available on the effects of implementation of the program, and of
alternatives and their effects? To what extent are irretrievable
commitments being made and options precluded as refinement of the
proposal progresses? How severe will be the environmental effects
if the program is implemented?"

															169 U.S.App.D.C. 20, 44, 514 F.2d 856, 80 (1975).

															While the Court's disapproval of this four-part inquiry
precludes any future demonstration of it workability, the test is
designed to allow judicial intervention only in the small number of
cases where the need for work to begin on an environmental impact
statement is clear Page 427 U. S. 419 and the agency violation blatant. [ Footnote 2/1 ] And, indeed, the Court of Appeals refused
to find a violation here, concluding instead that, on two of the
four factors, the evidence was such as to negate the need for a
prompt start on an impact statement. Page 427 U. S. 420 II I believe the Court of Appeals' test is a sensible way to
approach enforcement of NEPA, and none of the Court's reasons for
concluding otherwise are, for me, persuasive. [ Footnote 2/2 ]

															The Court begins its rejection of the four-part test by
announcing that the procedural duty imposed on the agencies by §
102(2)(C) is "quite precise," and leaves a court "no authority to
depart from the statutory language. . . ." Ante at 427 U. S. 406 .
Given the history and wording of NEPA's impact statement
requirement, this statement is baffling. A statute that imposes a
complicated procedural requirement on all "proposals" for "major
Federal actions significantly affecting the quality of the human
environment" and then assiduously avoids giving any hint, either
expressly or by way of legislative history, of what is meant by a
"proposal" or by a "major Federal Page 427 U. S. 421 action" can hardly be termed precise. In fact, this vaguely
worded statute seems designed to serve as no more than a catalyst
for development of a "common law" of NEPA. To date, the courts have
responded in just that manner and have created such a "common law."
169 U.S.App.D.C. at 336, 514 F.2d at 870-872. Indeed, that
development is the source of NEPA's success. Of course, the Court
is correct that the courts may not depart from NEPA's language.
They must, however, give meaning to that language if there is to be
anything in NEPA to enforce at all. And that is all the Court of
Appeals did in this case.

															But, claims the Court, judicial intervention of the sort
approved by the Court of Appeals would leave the agencies uncertain
about their procedural duties under NEPA. There is no basis for
this claim. The agencies already know their duties under NEPA, and
the Court of Appeals did not alter them. All it did was create a
mechanism to allow it to enforce those preexisting duties.

															Next, the Court fears, the four-part test would "invite judicial
involvement in the day-to-day decisionmaking process of the
agencies. . . ." Ante at 427 U. S. 406 .
This concern is in part untrue and in part exaggerated. The test
would certainly result in judicial involvement with the single
decision whether the time is right to begin an impact statement.
But this is hardly a day-to-day process, and the involvement even
in that decision would be limited to timing alone. The Court of
Appeals made clear that, so long as their decision was not
arbitrary or capricious,

															"definition of the proper region for comprehensive development
and, therefore, the comprehensive impact statement should be left
in the hands of the federal appellees,"

															169 U.S.App.D.C. at 45 n. 33, 514 F.2d at 881 n. 33, a position
which the Court adopts today. Ante at 427 U. S. 412 .
And, most important, a federal Page 427 U. S. 422 court would intervene at all only when the four-part test
indicated an abdication of the agency's statutory duty and the
necessity for judicial intervention.

															The Court is also concerned that the proposed rule would invite
litigation. But the recognition of any right invites litigation,
and it is a curious notion of statutory construction that makes
substantive rights depend on whether persons would seek to enforce
them in court. See United States v. Watson, 423 U.
S. 411 , 423 U. S. 433 , 423 U. S. 452 n.19 (1976) (MARSHALL, J., dissenting). In any case, to the extent
the litigation is the result of agency noncompliance with NEPA, the
Court can hardly complain about it. And to the extent the
litigation is frivolous, the four-part test is a stiff one, and
"the plaintiff can be hastened from [the] court by summary
judgment." Barlow v. Collins, 397 U.
S. 159 , 397 U. S. 175 n. 10 (1970) (opinion of BRENNAN, J.).

															Lastly, the Court complains, since some contemplated projects
might never come to fruition, the Court of Appeals' test might
result "in the preparation of a good many unnecessary impact
statements." Ante at 427 U. S. 406 (footnote omitted). Even bypassing the instances in which a project
is dropped as a result of environmental considerations discovered
in the course of preparing an impact statement, the Court's
concerns are exaggerated. The Court of Appeals showed great
sensitivity to the need for federal officials to be able "to dream
out loud without filing an impact statement," 169 U.S.App.D.C. at
43, 514 F.2d at 879, and did not seek to disturb that freedom.
Indeed, a major point of the four-part test is to avoid wasted
effort -- including the wasted effort of enjoining an already
proposed project to allow the belated preparation of an impact
statement -- and the Court suggests, and I can imagine no reason
why the test is unlikely to be successful in achieving that
goal. Page 427 U. S. 423 In short, the Court offers nothing but speculation,
misconception, and exaggeration to reject a reasonably designed
test for enforcing the duty NEPA imposes upon the federal agencies.
Whatever difficulties the Court may have with the initial
application of the test in this case -- and I agree that an
injunction was not warranted on the facts before the Court of
Appeals -- the Court has articulated no basis for interring the
test before it has been given a chance to breathe.

															[ Footnote 2/1 ]

															Nothing in Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U. S. 776 (1976), suggests that work on an impact statement cannot
successfully begin in situations identified by this four-part test.
In Flint Ridge, in considering whether an agency should
begin work on an impact statement arguably necessary for federal
approval of certain private action by a real estate developer, we
rejected the claim that the agency should begin work before the
private action was submitted to the agency for approval. "The
agency could not fruitfully begin the impact statement until the
developer's plans were fully or largely worked out. . . ." Id. at 426 U. S. 791 n. 13.

															This language is not contrary to the Court of Appeals' position
here for two reasons. First, the quoted language recognizes that an
impact statement could be begun when the developer's plans were
largely worked out, essentially the situation the four-part test
would identify as appropriate for initiation of work on an impact
statement. Second, and more important, Flint Ridge concerned federal approval of private action, rather than federal
initiation of its own project, at issue here. This distinction has
been recognized before, Aberdeen & Rockfish R. Co. v.
SCRAP, 422 U. S. 289 , 422 U. S. 320 (1975), and is recognized by the Court today. When the federal
agency is initiating its own proposal, NEPA is more demanding. In
such circumstances, NEPA is "intended to assure [environmental]
consideration during the development of [the] proposal," whereas,
when private action is to be approved, NEPA seeks only to assure
such consideration "during the formulation of a position on [the]
proposal submitted by private parties." Ante at 427 U. S. 409 (footnote omitted).

															Nor are other parts of the Court's opinion today inconsistent
with the Court of Appeals' approach. While it is true in general,
as the Court observes, that, in the absence of a proposal there is
nothing for an impact statement to analyze, ante at 427 U. S.
401 -402, the observation is a generalization plainly
inapplicable to situations identified by the four-part test.

															[ Footnote 2/2 ]

															The Court attempts to discredit the Court of Appeals' conclusion
that the Government contemplates a regional development plan or
proposal. The Court confuses the possibility of such a plan -- all
that is needed to prompt application of the four-part test -- with
its reality. All the parties, the District Court, and the Court of
Appeals are agreed that no regional plan exists in this case. But
the Government concedes that a regional plan is contemplated in the
sense the Court of Appeals used the term.

															"[I]t would be accurate to conclude that petitioners
'contemplate' regional planning (although not necessarily for the
region defined by respondents) because, as the district court found
. . and as the National Impact Statement confirms,"

															"[i]t is possible a decision will be made to prepare a statement
for the entire Northern Great Plains region, but the information
available [to petitioners] may indicate that statements on smaller
subregions, geologic structures, basin, or selected individual
actions"

															"will be preferable."

															Brief for Federal Petitioners 40 n. 32.

															Thus, the Court's conclusion that "the Court of Appeals erred in
. . . its factual assumptions," ante at 427 U. S. 403 ,
either misapprehends the factual assumptions necessary to the Court
of Appeals' theory or is entirely without support in the
record.

Summary:
The National Environmental Policy Act of 1969 (NEPA) requires federal agencies to include an environmental impact statement (EIS) in reports on proposals for major federal actions that could significantly affect the environment. In this case, environmental organizations sued federal officials, arguing that they needed to prepare a comprehensive EIS for the entire Northern Great Plains region due to the potential environmental impact of coal-related operations. The lower court ruled in favor of the federal officials, but the Court of Appeals reversed, saying an EIS was required if the officials decided to control the region's development.

The Supreme Court disagreed with the Court of Appeals, ruling that NEPA does not mandate an EIS for the entire region. They reasoned that there were no proposals for major federal action in the region and that the federal officials had not proposed any legislation. The Court clarified that NEPA's requirements depend on whether the federal agency is initiating its own proposal or approving private action. In this case, there was no proposal for major federal action, so an EIS was not necessary.


U.S. Supreme Court Missouri v. Illinois, 200
U.S. 496 (1906) Missouri v. Illinois No. 4, Original Argued January 2-4,
1906 Decided February 19,
1906 200
U.S. 496 Syllabus Missouri filed its bill in this Court to enjoin Illinois and the
Sanitary District of Chicago from discharging sewage through an
artificial channel connecting Lake Michigan with the Desplaines
River, a tributary of the Illinois, the latter of which empties
into the Mississippi River above St. Louis, claiming that such
sewage so polluted the water of the Mississippi as to render it
unfit to drink and productive of typhoid fever and other diseases.
Illinois denied the jurisdiction of this Court, and the allegations
of the bill, and alleged that, if the conditions complained of at
St. Louis existed, they resulted from discharge of sewage into the
Mississippi by cities of Missouri and from other causes for which
Illinois was not responsible. A demurrer was overruled, with leave
to answer, 180 U. S. 180 U.S.
208; after answer and taking of proof, including much expert
testimony as to effect of sewage on water and health, held that:

															This Court has jurisdiction and authority to deal with a
question of this nature between two states which, if it arose
between two independent sovereignties, might lead to war.

															In such a case, while this Court cannot take the place of a
legislature, it must determine whether there is any principle of
law, and if any, what, on which the plaintiff state can
recover.

															Every matter which would be cognizable in equity if between
private citizens in the same jurisdiction would not warrant this
Court in interfering if such matter arose between states; this
Court should only intervene to enjoin the action of one state at
the instance of another when the case is of serious magnitude,
clearly and fully proved, and in such a case, only such principles
should be applied as this Court is prepared deliberately to
maintain.

															While a state may have relief in this Court against another
state to prevent it from discharging sewage through an artificial
channel into, and thereby polluting the waters of, a river flowing
through both states and on which the complainant state relies for
water supply, if the alleged facts as to such pollution are not
fully proved, and it also appears that such pollution might result
from the discharge of sewage by cities of the complainant state
into the same river the bill should be dismissed, but in this case
without prejudice.

															The reasons on which prescription for a public nuisance is
denied or granted to individuals against the sovereign power to
which he is subject have no application to an independent state,
but it would be contradicting a fundamental principle of human
nature not to allow effect to the lapse of time. The fixing of a
definite time, however, is usually for the legislature, and not for
the courts. Page 200 U. S. 497 The mere fact that the drainage canal, constructed by authority
of Illinois and also under authority of an act of Congress, brought
water from the Lake Michigan watershed into the watershed of the
Mississippi does not, in the absence of proof of the deleterious
effects of such water, render the canal an unlawful structure the
use whereof should be enjoined at the instance of another state in
the Mississippi watershed.

															The facts, which involved the right of the defendants to
discharge the sewage of Chicago through an artificial channel into
the Desplaines River, which empties into a tributary of the
Mississippi River, are stated in the opinion of the Court. Page 200 U. S. 517 MR. JUSTICE HOLMES delivered the opinion of the Court.

															This is a suit brought by the State of Missouri to restrain the
discharge of the sewage of Chicago through an artificial channel
into the Desplaines River, in the State of Illinois. That river
empties into the Illinois River, and the latter empties into the
Mississippi at a point about forty-three miles above the City of
St. Louis. It was alleged in the bill that the result of the
threatened discharge would be to send 1,500 tons of poisonous filth
daily into the Mississippi, to deposit great quantities of the same
upon the part of the bed of the last-named river belonging to the
plaintiff, and so to poison the water of that river, upon which
various of the plaintiff's cities, towns, and inhabitants depended,
as to make it unfit for drinking, agricultural, or manufacturing
purposes. It was alleged that the defendant sanitary district was
acting in pursuance of a statute of the State of Illinois, and as
an agency of that state. The case is stated at length in 180 U. S. 180 U.S.
208, where a demurrer to the bill was overruled. A supplemental
bill alleges that, since the filing of the original bill, the
drainage canal has been opened and put into operation, and has
produced and is producing all the evils which were apprehended when
the injunction first was asked. The answers deny the plaintiff's
case, allege that the new plan sends the water of the Illinois
River into the Mississippi much purer than it was before, that many
towns and cities of the plaintiff along the Missouri and
Mississippi discharge their sewage into those rivers, and that, if
there is any trouble, the plaintiff must look nearer home for the
cause.

															The decision upon the demurrer discussed mainly the jurisdiction
of the court, and, as leave to answer was given when the demurrer
was overruled, naturally there was no very precise consideration of
the principles of law to be applied if the plaintiff should prove
its case. That was left to the future, Page 200 U. S. 518 with the general intimation that the nuisance must be made out
upon determinate and satisfactory evidence, that it must not be
doubtful, and that the danger must be shown to be real and
immediate. The nuisance set forth in the bill was one which would
be of international importance -- a visible change of a great river
from a pure stream into a polluted and poisoned ditch. The only
question presented was whether, as between the states of of the
Union, this Court was competent to deal with a situation which, if
it arose between independent sovereignties, might lead to war.
Whatever differences of opinion there might be upon matters of
detail, the jurisdiction and authority of this Court to deal with
such a case as that is not open to doubt. But the evidence now is
in, the actual facts have required for their establishment the most
ingenious experiments, and for their interpretation the most subtle
speculations, of modern science, and therefore it becomes necessary
at the present stage to consider somewhat more nicely than
heretofore how the evidence in it is to be approached.

															The first question to be answered was put in the well known case
of the Wheeling bridge. Pennsylvania v. Wheeling &
Belmont Bridge Co. , 13 How. 518. In that case also,
there was a bill brought by a state to restrain a public nuisance
-- the erection of a bridge alleged to obstruct navigation -- and a
supplemental bill to abate it after it was erected. The question
was put most explicitly by the dissenting judges, but it was
accepted by all as fundamental. The Chief Justice observed that, if
the bridge was a nuisance, it was an offense against the
sovereignty whose laws had been violated, and he asked what
sovereignty that was. 13 How. 54 U. S. 561 ;
Daniel, J., 13 How. 54 U. S. 599 . See also Kansas v. Colorado, 185 U.
S. 125 . It could not be Virginia, because that state had
purported to authorize it by statute. The Chief Justice found no
prohibition by the United States. 13 How. 508. No third source of
law was suggested by anyone. The majority accepted the Chief
Justice's postulate, and found an answer in what Congress had
done.

															It hardly was disputed that Congress could deal with the Page 200 U. S. 519 matter under its power to regulate commerce. The majority
observed that, although Congress had not declared in terms that a
state should not obstruct the navigation of the Ohio by bridges,
yet it had regulated navigation upon that river in various ways,
and had sanctioned the compact between Virginia and Kentucky when
Kentucky was let into the Union. By that compact, the use and
navigation of the Ohio, so far as the territory of either state lay
thereon, was to be free and common to the citizens of the United
States. The compact, by the sanction of Congress, had become a law
of the Union. A state law which violated it was unconstitutional.
Obstructing the navigation of the river was said to violate it, and
it was added that more was not necessary to give a civil remedy for
an injury done by the obstruction. 13 How. 54 U. S.
565 -566. At a later stage of the case, after Congress
had authorized the bridge, it was stated again in so many words
that the ground of the former decision was that "the act of the
Legislature of Virginia afforded no authority or justification. It
was in conflict with the acts of Congress, which were the paramount
law." 59 U. S. 18 How.
421, 59 U. S.
430 .

															In the case at bar, whether Congress could act or not, there is
no suggestion that it has forbidden the action of Illinois. The
only ground on which that state's conduct can be called in question
is one which must be implied from the words of the Constitution.
The Constitution extends the judicial power of the United States to
controversies between two or more states, and between a state and
citizens of another state, and gives this Court original
jurisdiction in cases in which a state shall be a party. Therefore,
if one state raises a controversy with another, this Court must
determine whether there is any principle of law, and, if any, what,
on which the plaintiff can recover. But the fact that this Court
must decide does not mean, of course, that it takes the place of a
legislature. Some principles it must have power to declare. For
instance, when a dispute arises about boundaries, this Court must
determine the line, and, in doing so, must be governed by rules
explicitly Page 200 U. S. 520 or implicitly recognized. Rhode Island v.
Massachusetts , 12 Pet. 657, 37 U. S. 737 .
It must follow and apply those rules even if legislation of one or
both of the states seems to stand in the way. But the words of the
Constitution would be a narrow ground upon which to construct and
apply to the relations between states the same system of municipal
law in all its details which would be applied between individuals.
If we suppose a case which did not fall within the power of
Congress to regulate, the result of a declaration of rights by this
Court would be the establishment of a rule which would be
irrevocable by any power except that of this Court to reverse its
own decision, an amendment of the Constitution, or possibly an
agreement between the states, sanctioned by the legislature of the
United States.

															The difficulties in the way of establishing such a system of law
might not be insuperable, but they would be great and new. Take the
question of prescription in a case like the present. The reasons on
which prescription for a public nuisance is denied or may be
granted to an individual as against the sovereign power to which he
is subject have no application to an independent state. See 1 Oppenheim, International Law 293, §§ 242, 243. It
would be contradicting a fundamental principle of human nature to
allow no effect to the lapse of time, however long, Davis v.
Mills, 194 U. S. 451 , 194 U. S. 457 ,
yet the fixing of a definite time usually belongs to the
legislature, rather than the courts. The courts did fix a time in
the rule against perpetuities, but the usual course, as in the
instances of statutes of limitation, the duration of patents, the
age of majority, etc., is to depend upon the lawmaking power.

															It is decided that a case such as is made by the bill may be a
ground for relief. The purpose of the foregoing observations is not
to lay a foundation for departing from that decision, but simply to
illustrate the great and serious caution with which it is necessary
to approach the question whether a case is proved. It may be
imagined that a nuisance might be created by a state upon a
navigable river like the Danube, which would Page 200 U. S. 521 amount to a casus belli for a state lower down unless
removed. If such a nuisance were created by a state upon the
Mississippi, the controversy would be resolved by the more peaceful
means of a suit in this Court. But it does not follow that every
matter which would warrant a resort to equity by one citizen
against another in the same jurisdiction equally would warrant an
interference by this Court with the action of a state. It hardly
can be that we should be justified in declaring statutes ordaining
such action void in every instance where the circuit court might
intervene in a private suit upon no other ground than analogy to
some selected system of municipal law and the fact that we have
jurisdiction over controversies between states.

															The nearest analogy would be found in those cases in which an
easement has been declared in favor of land in one state over land
in another. But there the right is recognized on the assumption of
a concurrence between the two states, the one, so to speak,
offering the right, the other permitting it to be accepted. Mannville Co. v. Worcester, 138 Mass. 89. But when the
state itself is concerned, and by its legislation expressly
repudiates the right set up, an entirely different question is
presented.

															Before this Court ought to intervene, the case should be of
serious magnitude, clearly and fully proved, and the principle to
be applied should be one which the court is prepared deliberately
to maintain against all considerations on the other side. See
Kansas v. Colorado, 185 U. S. 125 .

															As to the principle to be laid down, the caution necessary is
manifest. It is a question of the first magnitude whether the
destiny of the great rivers is to be the sewers of the cities along
their banks or to be protected against everything which threatens
their purity. To decide the whole matter at one blow by an
irrevocable fiat would be at least premature. If we are to judge by
what the plaintiff itself permits, the discharge of sewage into the
Mississippi by cities and towns is to be expected. We believe that
the practice of discharging into the river is Page 200 U. S. 522 general along its banks, except where the levees of Louisiana
have led to a different course. The argument for the plaintiff
asserts it to be proper within certain limits. These are facts to
be considered. Even in cases between individuals, some
consideration is given to the practical course of events. In the
black country of England, parties would not be expected to stand
upon extreme rights. St. Helen's Smelting Co. v. Tipping, 11 H.L.C. 642. See Boston Ferrule Co. v. Hills, 159 Mass.
147, 150. Where, as here, the plaintiff has sovereign powers and
deliberately permits discharges similar to those of which it
complains, it not only offers a standard to which the defendant has
the right to appeal, but, as some of those discharges are above the
intake of St. Louis, it warrants the defendant in demanding the
strictest proof that the plaintiff's own conduct does not produce
the result, or at least so conduce to it, that courts should not be
curious to apportion the blame.

															We have studied the plaintiff's statement of the facts in
detail, and have perused the evidence, but it is unnecessary for
the purposes of decision to do more than give the general result in
a very simple way. At the outset, we cannot but be struck by the
consideration that, if this suit had been brought fifty years ago,
it almost necessarily would have failed. There is no pretense that
there is a nuisance of the simple kind that was known to the older
common law. There is nothing which can be detected by the
unassisted senses -- no visible increase of filth, no new smell. On
the contrary, it is proved that the great volume of pure water from
Lake Michigan which is mixed with the sewage at the start has
improved the Illinois River in these respects to a noticeable
extent. Formerly it was sluggish and ill smelling. Now it is a
comparatively clear stream to which edible fish have returned. Its
water is drunk by the fishermen, it is said without evil results.
The plaintiff's case depends upon an inference of the unseen. It
draws the inference from two propositions. First, that typhoid
fever has increased considerably since the change and that other
explanations Page 200 U. S. 523 have been disproved, and second that the bacillus of typhoid can
and does survive the journey and reach the intake of St. Louis in
the Mississippi.

															We assume the now-prevailing scientific explanation of typhoid
fever to be correct. But when we go beyond that assumption,
everything is involved in doubt. The data upon which an increase in
the deaths from typhoid fever in St. Louis is alleged are disputed.
The elimination of other causes is denied. The experts differ as to
the time and distance within which a stream would purify itself. No
case of an epidemic caused by infection at so remote a source is
brought forward, and the cases which are produced are controverted.
The plaintiff obviously must be cautious upon this point, for if
this suit should succeed, many others would follow, and it not
improbably would find itself a defendant to a bill by one or more
of the states lower down upon the Mississippi. The distance which
the sewage has to travel (357 miles) is not open to debate, but the
time of transit, to be inferred from experiments with floats, is
estimated as varying from eight to eighteen and a half days, with
forty-eight hours more from intake to distribution, and when
corrected by observations of bacteria, is greatly prolonged by the
defendants. The experiments of the defendant's experts lead them to
the opinion that a typhoid bacillus could not survive the journey,
while those on the other side maintain that it might live and keep
its power for twenty-five days or more, and arrive at St. Louis.
Upon the question at issue, whether the new discharge from Chicago
hurts St. Louis, there is a categorical contradiction between the
experts on the two sides.

															The Chicago drainage canal was opened on January 17, 1900. The
deaths from typhoid fever in St. Louis, before and after that date,
are stated somewhat differently in different places. We give them
mainly from the plaintiff's brief: 1890, 140; 1891, 165; 1892, 441;
1893, 215; 1894, 171; 1895, 106; 1896, 106; 1897, 125; 1898, 95;
1899, 131; 1900, 154; 1901, 181; 1902, 216; 1903, 281. It is argued
for the defendant that the numbers Page 200 U. S. 524 for the later years have been enlarged by carrying over cases
which in earlier years would have been put into a miscellaneous
column (intermittent, remittent, typho-malaria, etc., etc.), but we
assume that the increase is real. Nevertheless, comparing the last
four years with the earlier ones, it is obvious that the ground for
a specific inference is very narrow if we stopped at this point.
The plaintiff argues that the increase must be due to Chicago,
since there is nothing corresponding to it in the watersheds of the
Missouri or Mississippi. On the other hand, the defendant points
out that there has been no such enhanced rate of typhoid on the
banks of the Illinois as would have been found if the opening of
the drainage canal were the true cause.

															Both sides agree that the detection of the typhoid bacillus in
the water is not to be expected. But the plaintiff relies upon
proof that such bacilli are discharged into the Chicago sewage in
considerable quantities; that the number of bacilli in the water of
the Illinois is much increased, including the bacillus coli
communis, which is admitted to be an index of contamination,
and that the chemical analyses lead to the same inference. To prove
that the typhoid bacillus could make the journey, an experiment was
tried with the bacillus prodigiosus, which seems to have
been unknown, or nearly unknown, in these waters. After preliminary
trials, in which these bacilli emptied into the Mississippi near
the mouth of the Illinois were found near the St. Louis intake and
in St. Louis in times varying from three days to a month, one
hundred and seven barrels of the same, said to contain one thousand
million bacilli to the cubic centimeter, were put into the drainage
canal near the starting point on November 6, and on December 4 an
example was found at the St. Louis intake tower. Four others were
found on the three following days, two at the tower and two at the
mouth of the Illinois. As this bacillus is asserted to have about
the same length of life in sunlight in living waters as the
bacillus typhosus, although it is a little more hardy, the
experiment is thought to prove one element of the plaintiff's case,
although Page 200 U. S. 525 the very small number found in many samples of water is thought
by the other side to indicate that practically no typhoid germs
would get through. It seems to be conceded that the purification of
the Illinois by the large dilution from Lake Michigan (nine parts
or more in ten) would increase the danger, as it now generally is
believed that the bacteria of decay, the saprophytes, which
flourish in stagnant pools, destroy the pathogenic germs. Of
course, the addition of so much water to the Illinois also
increases its speed.

															On the other hand, the defendant's evidence shows a reduction in
the chemical and bacterial accompaniments of pollution in a given
quantity of water, which would be natural in view of the mixture of
nine parts to one from Lake Michigan. It affirms that the Illinois
is better or no worse at its mouth than it was before, and makes it
at least uncertain how much of the present pollution is due to
Chicago and how much to sources further down, not complained of in
the bill. It contends that, if any bacilli should get through, they
would be scattered and enfeebled and would do no harm. The
defendant also sets against the experiment with the bacillus
prodigiosus a no less striking experiment with typhoid germs
suspended in the Illinois River in permeable sacs. According to
this, the duration of the life of these germs has been much
exaggerated, and in that water would not be more than three or four
days. It is suggested by way of criticism that the germs may not
have been of normal strength, that the conditions were less
favorable than if they had floated down in a comparatively
unchanging body of water, and that the germs may have escaped; but
the experiment raises at least a serious doubt. Further, it hardly
is denied that there is no parallelism in detail between the
increase and decrease of typhoid fever in Chicago and St. Louis.
The defendant's experts maintain that the water of the Missouri is
worse than that of the Illinois, while it contributes a much larger
portion to the intake. The evidence is very strong that it is
necessary for St. Louis to take preventive measures, by filtration
or otherwise, against the dangers of the Page 200 U. S. 526 plaintiff's own creation or from other sources than Illinois.
What will protect against one will protect against another. The
presence of causes of infection from the plaintiff's action makes
the case weaker in principle as well as harder to prove than one in
which all came from a single source.

															Some stress was laid on the proposition that Chicago is not on
the natural watershed of the Mississippi, because of a rise of a
few feet between the Desplaines and the Chicago Rivers. We perceive
no reason for distinction on this ground. The natural features
relied upon are of the smallest. And if, under any circumstances,
they could affect the case, it is enough to say that Illinois
brought Chicago into the Mississippi watershed in pursuance not
only of its own statutes, but also of the Acts of Congress of March
30, 1822, c. 14, 3 Stat. 659, and March 2, 1827, c. 51, 4 Stat.
234, the validity of which is not disputed. Wisconsin v.
Duluth, 96 U. S. 379 . Of
course, these acts do not grant the right to discharge sewage, but
the case stands no differently in point of law from a suit because
of the discharge from Peoria into the Illinois, or from any other
or all the other cities on the banks of that stream.

															We might go more into detail, but we believe that we have said
enough to explain our point of view and our opinion of the evidence
as it stands. What the future may develop, of course, we cannot
tell. But our conclusion upon the present evidence is that the case
proved falls so far below the allegations of the bill that it is
not brought within the principles heretofore established in the
cause. Bill dismissed without prejudice.

Summary:
Here is a summary of the case:

Missouri v. Illinois (1906) concerned a dispute between the states of Missouri and Illinois over water pollution in the Mississippi River. Missouri argued that Illinois' discharge of sewage into the river through an artificial channel made the water unfit for drinking and caused diseases like typhoid fever. The Court acknowledged its jurisdiction in interstate disputes and the seriousness of the issue. However, it dismissed Missouri's claim without prejudice, citing insufficient proof of Illinois' sole responsibility for the pollution and suggesting Missouri's own cities might contribute to the problem. The Court emphasized the need for clear and compelling evidence in such cases and left open the possibility for future litigation if new evidence arose.