ML20058A530
| ML20058A530 | |
| Person / Time | |
|---|---|
| Issue date: | 10/23/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AII, TASK-SE SECY-81-612, NUDOCS 8111100287 | |
| Download: ML20058A530 (8) | |
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ADJUDICATORY ISSUE (Information)
For_:
The Commission From:
James A. Fitzgerald, Assistant General Counsel Subiect:
Peshlakai v. Edwards *, et al.,
D.C.D.C. No. 78-2416 (Regional EIS for Uranium Mining and Milling)
To inform the Commission of the conclusion of this
Purpose:
lawsuit.
Discussion:
By order of Judge Greene on September 9,1981 the fif th and sole remaining claim in this action was dismissed without prejudice, thus terminating the lawsuit.
Three of the original five claims had been dismisse 4
by stipulation of all parties on December 17, 1980.
A fourth claim, that defendants are required by NEPA to file a -regional EIS covering federal actions in the San Juan Basin, was dismissed on summary judgment by memora_Ddum of tha court on May 18, 1981 (attached).}
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<b Formerly Peshlakai v. Duncan, et al. (including NRC among the federal defendants).
Contact:
Marjorie S. Nordlinger, OGC, 41493 w.o E..s;#r.1 n DJo re:.:rd nes 6:2;cd
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The fif th and final claim dealt specifica;1y with the Department of Interior and Tennessee Valley Authority's EIS on the Dalton Pass mine.
.k W d ames A. Titzgerald Assistant General Counsel
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UNITED STATES DISb.CT COURT FOR THE D8 STRICT OF COLUMBIA
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WALTER PESELAKAI, SR., et al.,
)
i-i
)
plaintiffs,
)
i
)
v.
)
Civil Action
- o. 78-2416
)
CHARLES W. DUNCAN, JR., et al.,
)
f-
)
p M[ k
(
Defendants.
)
1, FAY.1 8198)
MEMORANDUM dSO"cJ. h a Chk The federal defendants have moved for partial sammary judg-1 ment on plaintiffs' claim for a regiopal environmental impact i
statement (EIS).
This is the fourth time the Court has been called upon to adjudicate disputed claims between 'the parties regarding defendants' statutory duties under the National Envi-ronmental Policy Act, (NEPA), 42 U.S.C.
S 4321 g see., in con-I nection with defendants' approval of urahium mining and milling projects in the San Juan Basin, which is situated primarily in f
northern New Mexico.1/ Currently pending'is a' motion by'defen-i dents for partial summary jud'gment on the issue of whether defer -
dants are required by NE?A to file a regional EIS covering feder-al actions in the San Juan Basin region.2/
The controlling case interpreting the extent to which NEPA requires regional EIss is the Supreme-Court opinica in Klepee.v.
Sierra Club, 427 U.S. 390 (1976).
Klepee held that a regional 1
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'EIS is required only in two instances.
First, a regional EIS Jf On June 19,'1979 the Court denied plaintiffs' m> tion for a i
j temporary restraining order enjoining Mobil Oil Corporation's i
plan for pilot testing of in situ uranium leaching. The Court later denied plaintif f's motion for a preliminary injunction of the same project.
See Peshlakai v.
Duncan, 476 F. Supp.1247 j
(D.D.C. 1979).
On August 29, 1980, the Cottrt denied plaintiffs' motion for partial summary judgment on two of its claims, one of which is at issue again in this Memorandum.
I 2f This claim is one of two remaining for determination by the Court.- The first, third, and fourth claims in plaintiffs' com-plaint were dismissed by stipulation of all parties in a document filed with the Court Oecember 17, 1980.
would '
- necessary if there existed cceprehensive federal pla.
for the develop.,ent of the entire region.
This Court has con-cluded twice.previously, however, that no such plan exists for the Sas Juan Basin region 1[ and it so finds again.
The second c
circumstance in which, under Klepre, a regional EIS is mandated I
is "when several proposals for.
related actions that will have cumulative or synergistic environmental impact upon a regior:
s
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are pending concurrently before an agency.".1/ Thus, the questior:
j I
here is whether the proposed federal actions in the Basin are
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sufficiently related to each other and likely to cause sufficient cumulative or synergistic impacts as to require analysis through 5 a regional EIS (as distinguished frem site-specific EISs and environmental analyr,es (EAs)).
The various governmental agencies involved have determined that no such relationships exist and that sufficient cu=ulative i= pacts to manda te preparation of a regional EIS are not pres-ent.
The Court's review of these determinations is relatively
,i
..As the Supreme Court said in K1 tope, suera,,427 U.S.
at narrow.
I
- 412, l
.he determination of the region, if any, with respect to which a co=prehensive statement is necessary requires 'the weighing of a number I
of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibili-ty.
Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the re-sponsible federal agencies Absent a showing of arbitrary action, we =ust assume that the agencies have exercised this discre-tion appropriately.
I i
The Court went on to say that determination of the extent and
_ effect of cumulative impacts and identification of the geographic areas in which they occur are for the agencies and that "a court
.i should [not] subs'titute its judgment for that of the agency as te,
i the environmental consequences of its actions."
"The only role 3/
Peshlakai v.
Duncan, supra, 476 P.
Supp. at 1258; Peshlakai i
- v. Schlesincer, No. 78-2416, Memorandum Order at p. 3, August 29, 1980.
4/
Kleppe, supra, 427 U.S.
at 410.
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for a raurt is to insure that the ag' cy has.taken a 'hard look' h
at environmental consquences.'
427 U.S. at 410 n. 21.
Soo Isaac Walton teacue of America v. Marsh, No. 79-2529, slip opinion at t
- p. 58 n. 73 (D.C. Cir. Apr. 24, 1981).
Finally, this Court has previously held in this case (<i6 T.
Supp. at 1259 n. 34), that under Kleepe the agencies have discretion not only to determine i
the appropriate particular region for a comprehensive EIS but
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also to decide whether any region is an appropriate locus for such a study because
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[ilt is impossible logically to separate one determination frem the other.
If the agen-I cies have discretion to determine for what I
region an EIS is required, they cust, of necessity, also have discretion to determine that there is no region with sufficient cu=u-lative impacts to require an EIS.
The Court has reviewed the government's documented con-side ration of cumulative environmental i= pacts in the San Juan Basin regien.
There can be no question but that the agencies
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have taken, and are continuing to take, a "hard look" at cumula-I tive environmental effects of uraniu: development in the Basin.
1 The site specific EIss and EAs prepared for the particular pro]-
ects that have reached the " proposed
- stage contain recurrent j
i analyses of cu=ulative effects and =anifest appropriate sensi-l tivity on the-part of the agencies toward regional environmental i
e, problems,4/
Additionally, the govern =ent has completed its re-port on environmental issues surrounding uranium development in i
the Basin region, prepared by the San Juan Basin Regional Uraniu:
j Study (SJBRCS) task force.
This document thoroughly discusses potential environmental impacts upon the Basin resulting from three hypothetical levels of uraniu= development in the region.
As the pref ace to the final report indicates, the study is j
intended as an aid to the preparation of individual EIss.
Defen-dents have fi, led af fidavits explaining the government's decision to study the environmental im,4ct of uranium development in the region by examining the prospective impact of various scenarios i,
J/
See North Sloce Borcuch v.
Andrus, No. 80-1148, slip opinion at pp. 22-25 (D.D.C.
Oct.
9, 1980).
of deve'opner.t, through the SJBRUS rr 7tt, c6mbined with the
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preparation of site-specific EISs and EAs for particular proposed projects.
It is the opinion of the participating agencies that t
future uranium development in the area is so speculative and, 1
therefore, so resistant to accurate forecasting so as to render preparation of a regional EIS either impossible or redundant with 1
SJBRUS and, hence, wasteful.
/
l Plaintif f s have presented no evidence from which the Court I
could conclude that defendants' decision to analyze environmental
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effects of uranium development in the Basin through SJBRUS and site-specific EISs and EAs, rather than through a single compre-hensive EIS, is arbitrary, capricious, or irrational.
Under the standard of Kleoce, suora, 427 U.S.
at 412, " Absent a showing of arbitrary action, we must assu=e that the agencies have exercised '
(their] discretion appropriately."
r i
Plaintiffs' sole response is that genuine issues of material fact recain to be decided.
In support of this contention they
[
cite,,this Court's observation (made at the time it de,nied their i
motion for a preliminary injunction) that "many more facts must i
f be known before a confident answer can be supplied on the ques-j tion of whether this is a sit'uation calling for ' comprehensive i
consideration'c pending proposals' that are so 'related as to require their ar.alysis in a single cc:prehensive impact state-I ment.'"
476 F.
Supp. at 1259.
The Court reiterated the sub-stance of that statement when it denied plaintiffs' motion for summary judgment last August.
Memorandum Order of August 29, 1980, at p. 3.
l These observations were, of course, made in the context of f
the denials of motions filed by plaintiffs and, whatever their specific language, they were not necessarily applicable to subse-quent defense-motions for summary judgment.
In any event, when 1
the defendants moved for summary judgment, it became incumbent upon plaintiffs to state specifically what genuine issues of i
material fact stood in the way of a grant of the motion.
At that juncture, however, plaintiffs listed no, factual disputes but
contencea only in c:cac conclusory terms snac cetw
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legal.. sues remained to be decided whether a regionni EIS
.I should be prepared in order adequately to analyze cumulative
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t regional effects; whether defendants' refusal to prepare a re-gional EIS is unreasonable; what region is appropriate for analy-sis and who should make that determination; and whether site-specific EISs are adequate,5/
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It is clear also'that, whatever may have been plaintiffs' intention, the issues these statepents raise are legal rather
[
than factual.
All of them in effect challenge the reasonableness S
of the ultimate governmental deter =inations.
However, the Court clearly does not have jurisdiction to conduct a de novo review of
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the need for a regional EIS, substituting its judgment for that of the agencies involved.
Rather, plaintiffs' claim has merit only if they could show some basis upon which defendants' exer-cise of their discretion appears arbitrary.
Their total failure j
to adduce evidence to-provide that basisI[ must, in the context of this action, be viewed as a failure to establish the existence of material disputed facts that would bar defendants' motion,8/
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Plaintiffs' Statement of Genuine Issues.
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Plaintiff s could have filed with their opposition to defen-Tants' notion, for example, affidavits of detailing synergistic i
effects foreseeably arising from proposed federal actions in the Basin region that were not considered in site-specific analyses and could not adequately be analyzed except in a region-wide examination., Plaintiffs' failure to proffer such evidence must be interpreted, in view of the elaborate briefing of this issue and the extensive submission of exhibits over the past two years, I
as a concession that such evidence is not available.
8/
The Court notes, by way of illustration, that in Klecoe the Supreme Court, after reversing the judgment of :he Court of ap-peals that a regional EIS was required,' r9 instated and af firmed the District Court's grant of summary judgment to the government and did not remand to the court for a trial.
A trdingly, in a separate Orde accompa'nying this Memoren-f dum, the Court grants defendants' motion for partial sum =o ty judgment regarding plaintif fs' regional EIS claim.
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Barold H.
Greene l
United States District Judge Dated:
May 18, 1981 i
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