767
F.Supp. 1518
BLUE
OCEAN PRESERVATION SOCIETY, a Hawaii non‑profit corporation; Sierra Club,
a
California non‑profit corporation;
Greenpeace Foundation, a Hawaii non‑
profit
corporation, Plaintiffs,
v.
James
D. WATKINS, Secretary, Department of Energy, et al., Defendants.
Civ.
No. 90‑00407 DAE.
United
States District Court,
D.
Hawai'i.
June
25, 1991.
*1519 Paul Spaulding, III, Arnold Lum, Sierra Club Legal
Defense Fund, Inc., Honolulu, Hawaii, for plaintiffs.
Daniel A. Bent, U.S. Atty., D. Hawaii,
Linda J. Joachim, Asst. U.S. Atty., Honolulu, Hawaii, Gary B. Randall, Atty.,
U.S. Dept. of Justice, Environment & Natural Resources Div., Office Litigation
Section, Washington, D.C., for defendants.
ORDER
GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND A PERMANENT
INJUNCTION
AND DENYING DEFENDANTS' COUNTER MOTION TO DISMISS THE CASE AS MOOT
DAVID A. EZRA, District Judge.
I. Introduction
This lawsuit seeks to compel preparation
of a federal Environmental Impact Statement ("EIS") for the Hawaii
Geothermal Energy Project (the "Project") and to enjoin any further
federal participation in the Project until the EIS is completed. Last January on plaintiffs' and defendants'
(or the "government" 's) motions for summary judgment, the court
ruled that the remaining *1520 phases
of the project constitute "major federal action" within the meaning
of the National Environmental Policy Act ("NEPA"). 42 U.S.C. § 4332(2)(C). Responding to the government's contention
that the matter was not yet ripe, the court also ruled that there remained
issues of fact (1) as to the Department of Energy's ("DOE" 's) level
of commitment to the Project, and (2) as to DOE's role in implementation of
the Project.
In the wake of that decision, DOE attempted
to "reprogram" the $5 million Congress had already appropriated
to the Project, but Congress rebuffed the attempt, and directed that at least
some of the money be used toward an EIS. Plaintiffs have now brought a new
summary judgment motion, arguing that given Congress' reaction to the reprogramming
effort, the case is now ripe, and submitting substantial evidence of the Project's
potential impact on the environment.
The government, rather than address plaintiffs'
arguments for summary judgment on the merits, has simply moved for dismissal,
arguing that the entirecase is moot.
II. Background
A complete statement of background facts
is set forth in the court's Order Denying Defendant United States' Motion
for Summary Judgment and Granting Plaintiffs' Motion for Partial Summary Judgment,
filed January 8, 1991 ("January 8 Order"), published at 754 F.Supp.
1450 (D.Hawaii 1991). A brief
summary of those facts follows, supplemented by the developments of the last
six months.
A. The Project
The Project is a cooperative venture of
both the State of Hawaii and the federal government to facilitate the development
of geothermal power as an alternative energy source in Hawaii. It involves four distinct stages or phases
leading to the private development of a 500 megawatt geothermal power plant
on the slopes of the Kilauea crater, an active volcano on the Island of Hawaii.
The first two phases, involving (1) the building of a small plant for
research and testing, and (2) research regarding the feasibility of transporting
the power generated to other islands via underwater cable, have already been
completed, and any attempt to obtain an EIS for those phases was deemed moot. January 8 Order, 754 F.Supp. at 1459. Phase III, entitled the Geothermal Resource
Verification and Characterization Program, is now in progress, and involves
the drilling of twenty‑five (25) commercial‑scale exploration
wells throughout the Kilauea East Rift Zone in order to "verify"
the geothermal resource. This
verification will clear the way for Phase IV, the construction of the full
500 megawatt project.
Phase III is proceeding with funds appropriated
by the Hawaii state legislature. So far, at least two slim‑bore scientific observation
holes ("SOHs") have been drilled, and four more are called for. It is anticipated that federal funds will
be utilized to drill the 25 full‑scale holes in areas "proven"
by the SOH drilling.
Phase IV will involve the construction
of up to twenty (20) separate geothermal power plants of about 25 megawatts
apiece. Each of these will employ
eight to ten working wells. The
separate plants will necessarily be connected by a network of roads, plumbing,
and power lines throughout the subzone areas. It will also involve the laying of overland and underwater
cable to carry the power generated to the islands of Maui and Oahu.
B. Federal Funding of the Project
As discussed by the court in its January
8 Order, 754 F.Supp. at 1453, Congress has thus far contributed $34.7 million,
over 80% of the total funding, to Phases I and II of the Project, and had
recently appropriated an additional $5 million toward Phase III. [FN1] *1521
This $5 million was the first of three such appropriations anticipated from
Congress over the next three years.
754 F.Supp. at 1455.
FN1. The legislative reports clearly earmarked this money
for Phase III, the Geothermal Resource Verification and Characterization Project:
The conferees agree to provide $5,000,000 to continue the Hawaii geothermal
resource verification and characterization project as described in the Senate
report.
H.R.Conf.Rep. No. 889, 101st Cong., 2d Sess., 84 (1990) (Plaintiffs'
Exhibit 3).
The Committee recommendation also includes $5,000,000 for
the State of Hawaii through its department of business and economic development
to continue the Hawaii geothermal resource verification and characterization
projects to help reduce the State's dependency on fossil fuels.
S.Rep. No. 378, 101st Cong., 2d Sess., 81 (1990) (Plaintiffs'
Exhibit 3).
At the hearing on December 17,
1990, counsel for the government suggested that the $5 million appropriation
did not bind DOE to use the money for the Project, and that DOE had not yet
decided whether to continue its support of the Project. Unable to determine the validity of this
claim on the evidence before it, the court determined that issues of fact
remained as to (1) DOE's level of commitment to the implementation of Phase
III, and (2) DOE's role with respect to the $5 million appropriation. 754 F.Supp. at 1465‑66.
1. DOE's Reprogramming Request
After this court ruled that
the government's participation in the Project constituted "major federal
action" based largely on the $5 million appropriation, DOE sought to
"reprogram" the money, and have it applied to another project. When DOE announced its intention to seek
reprogramming at a pretrial conference on February 12, 1991, the court granted
a continuance with the concurrence of all parties of the February trial date
in order to permit DOE and Congress to settle the status of the funding.
Plaintiffs conducted some discovery
on this reprogramming process, and obtained a single document from DOE:
an internal memorandum dated December 1, 1986, detailing DOE's reprogramming
procedure (the "Memo", Plaintiff's Exhibit 4).
The Memo explicitly acknowledges that an agency is expressly forbidden
from spending a Congressional appropriation for purposes other than those
for which they were appropriated. 31
U.S.C. § 1301(a).
The Memo goes on to explain,
however, that reprogramming may be sought by first clearing the request with
the Office of Management and Budget, and then submitting it to the appropriate
Congressional committees. Memo
at 2. Until Congress acts on
the request, the funds are placed into a special DOE reserve account. Memo at 5. If the request for reprogramming is not approved, the funds
must be used for the purposes stated in the original appropriation. Memo at 2.
There does not appear to be
any other statutory or regulatory guideline governing the reprogramming procedure.
DOE was simply pursuing its own prescribed method for obtaining Congressional
approval to deviate from the terms of the original appropriation.
2. The Congressional Reaction to the Reprogramming Request
U.S. Senator Daniel K. Inouye
strongly opposed the attempted reprogramming, and obtained, in conjunction
with the 1991 Dire Emergency Supplemental Appropriations Bill, Conference
Committee approval of language directing DOE to use
such funds as are necessary from amounts previously
provided to the State of Hawaii for geothermal resource verification and characterization
to conduct the necessary environmental assessments and/or environmental impact
statement (EIS) for the geothermal initiative to proceed.
H.R.Conf.Rep. No. 29,
102d Cong., 1st Sess. (1991) (appearing as Plaintiffs' Exhibit 13). In a colloquy between Senators Inouye
and J. Bennett Johnston on March 19, 1991, the language was clarified to assure
that any of the $5 million not used for an EIS would be applied to Phase III
as originally specified. Plaintiffs' Exhibit 9 at 2‑3.
DOE had made it clear
that its primary concern in seeking the reprogramming was this very lawsuit,
and the "possible precedent‑setting outcome of the lawsuit requiring
Federal preparation of such an EIS."
*1522 Plaintiff's Exhibit 8. In order to accommodate this concern about
legal precedent, the language approved by the Conference Committee explicitly
states that Phase III
is research work not development or project construction
work and is not a "major federal action" and therefore would not
require an EIS pursuant to the National Environmental Policy Act (NEPA).
However, the environmental sensitivity of this geothermal resource
is so acute that the process required in an EIS is important, and shall be
complied with in this case.
Plaintiffs' Exhibit 13.
By employing this language, the government attempted to avoid acknowledging
any legal obligation to conduct an EIS.
Notwithstanding the Conference
Report's characterization of Phase III as "research work" that does not constitute "major
federal action," the facts and law cannot support such a characterization.
As noted in the January 8 Order, Phases III and IV are "connected
actions" under NEPA regulations and must be made the subject of a single
EIS. 754 F.Supp. at 1459. Moreover, the "research work"
contemplated by Phase III alone easily satisfies the statutory standards for
"major federal action" based simply on the extent of federal funding.
Id. at 1466‑67.
The characterization of
Phase III as "research work not development or project construction work"
does not speak to the "major federal action" requirement as much
as it would to the "significantly affecting the quality of the human
environment" requirement. For
the reasons articulated herein, Section IV.B.2 infra, the court finds that
Phase III also satisfies that requirement.
III. Motion to Dismiss
for Mootness
A. The Government's Motion
Although the government
argues that the Conference Committee language directing the use of appropriated
funds to prepare an EIS "is not binding on the agency," Government's
Memorandum at 5, [FN2] it now asserts that
FN2. In making this claim, the Government relies on Intern.
Union v. Donovan, 746 F.2d 855, 861 (D.C.Cir.1984) ("A lump‑sum
appropriation leaves it to the recipient agency (as a matter of law, at least)
to distribute the funds among some or all of the permissible objects as it
sees fit."). The court is
not persuaded that the Congressional appropriation at issue here is such a
"lump‑sum appropriation."
The appropriation was very specifically earmarked. See footnote 1 supra.
[t]he Department of Energy has decided to accede to
the wishes of Congress and prepare an EIS on phases III and IV of the Hawaii
Geothermal Project as finally proposed by the State of Hawaii.
Government's Memorandum
at 2. The government also promises
that it "will not participate
in the Hawaii Geothermal Project, outside of the NEPA process, until completion
of the EIS." Id. Based on its decision to prepare an EIS,
and its promise not to participate in the Project until the EIS is done, the
government argues that the case is moot.
In support of its argument,
the government cites a series of cases defining mootness: S.E.C. v. Medical Committee for Human
Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 580, 30 L.Ed.2d 560 (1972) (there
must be an actual case or controversy);
Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n.
10, 39 L.Ed.2d 505 (1974) (the controversy must exist at all stages of review); Allard v. DeLorean, 884 F.2d 464, 466
(9th Cir.1989) (a case becomes moot when it loses its character as a live
controversy); Garcia v. Lawn,
805 F.2d 1400, 1402 (9th Cir.1986) (a case is moot if there is no meaningful
relief available to plaintiffs). Its
argument is that plaintiffs will get their EIS in any case, that the need
for an EIS therefore is no longer a live issue because there is no meaningful
relief the court can order beyond what the defendant DOE has suggested it
will provide.
B. The Plaintiffs' Response
to the Mootness Argument
1. The Illusory Nature of DOE's Promises
Plaintiffs, however, take
little comfort in DOE's "decision" to perform an EIS and *1523
DOE's "promise" to withhold any participation in the Project until
the EIS is complete. The record in this case supports plaintiffs'
concerns. Most disturbing is the acute possibility that DOE may yet again
change its mind or renege on its stated intent. Plaintiffs note that DOE has in fact changed its position several
times already in an attempt to avoid adjudication in this case. Plaintiffs' Exhibits 6 and 8. This gives rise to serious questions regarding
the immutability of DOE's decision and promise.
In addition, the government
unequivocally states its position that it is not required to prepare an EIS.
It has consistently maintained that NEPA does not require it and that
Congress' directive does not require it.
Defendants' Memorandum at 5 ("[T]he language ... is not binding
on the agency."). Thus the government reaffirms its position
that nothing but its own volition is prompting the preparation of the EIS,
and in so doing concedes that nothing would prevent it from again changing
its position.
2. The Inadequacy of the Actions Promised
But even if DOE adheres
to its latest decision, what it has "decided" and "promised" falls short of what
plaintiffs have sought in this case.
Plaintiffs allege, among other things,
a. The government does not say when it will begin the
EIS process‑‑plaintiffs seek immediate preparation of an EIS;
b. The government promises to prepare an EIS on Phases
III and IV only "as finally proposed by the State of Hawaii"‑‑this
leaves open the possibility that the state may attempt to redefine the Project
for NEPA purposes, or that DOE will postpone the EIS indefinitely, awaiting
some kind of "final proposal" from the state;
c. The government intends to continue to participate
in the Interagency Group, to process federal permits, and to continue with
unspecified "appropriate action" while the EIS is being prepared‑‑plaintiffs
seek to enjoin all federal participation until the EIS is complete;
d. The government's promise involves only DOE‑‑plaintiffs
seek to enjoin the participation of all defendants in the Project until the
EIS is complete.
Pointing out these shortcomings
in the government's promises, plaintiffs argue that such "illusory and
nonspecific" promises cannot render the case moot. Plaintiffs' Reply
Memorandum at 10.
3. Application of the Mootness Doctrine
The burden of demonstrating
mootness is a heavy one. County
of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d
642 (1979); Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241,
1244 (9th Cir.1988). The question
of mootness " 'is not whether the precise relief sought at the time the
application for an injunction was filed is still available.
The question is whether there can be any effective relief.' "
Gordon, 849 F.2d at 1244‑45 (quoting Garcia v. Lawn, 805 F.2d 1400,
1403 (9th Cir.1986) (emphasis provided in Gordon )).
This is not a case in
which the government has already prepared an EIS, or even commenced such preparation.
[FN3] Plaintiffs cite numerous
cases for the proposition that a suit to compel future action is moot only
after it has been "fully and irrevocably carried out." E.g., University of Texas v. Camenisch,
451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981). To the court, this seems axiomatic.
Accordingly, a suit to compel an EIS is rendered moot when the EIS
is completed and filed. Romero‑Barcelo v. Brown, 643 F.2d
835, 862 (1st Cir.1981); City
of Newport Beach v. Civil Aeronautics Board, 665 F.2d 1280 (D.C.Cir.1981); Upper Pecos Association v. Stans, 500
F.2d 17 (10th Cir.*1524 1974). Here, of course, the EIS process is not
only unfinished, it has not begun. [FN4]
FN3. EIS preparation commences with the publication of a notice
in the Federal Register, as required by 40 C.F.R. § 1501.7. To date, no such publication has occurred.
FN4. Plaintiffs also note that a suit to compel an EIS may
be rendered moot if the challenged action has already taken place and has
already had its irreversible impact on the environment. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988)
(mining operation was complete and therefore the suit over the EIS for the
operation was moot), compare Columbia Basin Land Protection Assoc. v. Schlesinger,
643 F.2d 585, 591 n. 1 (9th Cir.1981) (power line had already been constructed,
but challenge was not moot because relief could still be afforded by in the
form of removal of the power line). Consistent with this analysis, Plaintiffs' suit for an EIS
for Phases I and II was declared moot in the January 8 Order. 754 F.Supp. at 1459‑60. This does not apply to Phases III and
IV, however,
which have yet to be carried out.
Moreover, there are a number
of issues raised by the suit that the government has failed to address. See items (a)‑(d) in Section III.B.2,
supra. Had the government come
forward with specific commitments on these points, its claim of mootness might
have more force. In fact, DOE's
affidavit, from Deputy Assistant Secretary Robert L. San Martin, makes absolutely
no commitment as to the timing of the promised EIS. It does not bind any agency defendant
other than DOE. [FN5] It does
not speak to the issue of continued federal participation in the Interagency
Group, in issuing permits for various aspects of the Project, in advising
and consulting with state and private interests working on the Project. All of this plaintiffs seek to enjoin;
the suit cannot be moot as long as the government ignores these additional
demands.
FN5. As already noted, it is not clear that it binds even
DOE. See discussion in Section
III.B.1 supra.
4. The
"Voluntary Cessation" Exception to the Mootness Doctrine
Even if DOE's promises were
sufficient to deprive the court of jurisdiction under traditional notions
of mootness, these facts fall squarely within a well‑established exception
to the mootness doctrine: "the
voluntary cessation of allegedly illegal conduct." United States v. W.T. Grant Co., 345 U.S.
629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), quoted in County of Los
Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).
The U.S. Supreme Court has recognized
that, as a general rule, such voluntary cessation will not deprive the court
of jurisdiction. Id.;
see also Armster v. United States District Court, 806 F.2d 1347, 1357
(9th Cir.1986) ("a change of activity by a defendant under the threat
of judicial scrutiny is insufficient to negate the existence of an otherwise
ripe case or controversy"). The
"voluntary cessation" exception is rooted in the policy that a party
should not be able to insulate itself from any challenge to its illegal conduct
simply by suspending the illegal activity whenever a legal action is brought;
otherwise there would be no check on that party's resumption of the
conduct after dismissal of the legal action.
Accordingly, in such cases, the matter can be deemed moot only if (1)
" 'there is no reasonable expectation ...' that the alleged violation
will recur, and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation."
Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting Grant, 345 U.S. at
633, 73 S.Ct. at 898) (other citations omitted).
As applied by the Supreme Court,
this test imposes a substantial burden on the movant. In City of Los Angeles v. Lyons, 461 U.S.
95, 100‑01, 103 S.Ct. 1660, 1664, 75 L.Ed.2d 675 (1982), for example,
the Court refused to moot a claim for injunctive relief against allegedly
illegal police practices (choke‑ holds), despite the fact that those
practices had been banned by administrative moratorium. Because the moratorium by its terms was
not permanent, the moratorium was insufficient to ensure that the challenged
actions would not recur. Similarly,
in City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct.
1070, 1074‑75, 71 L.Ed.2d 152 (1982), the Supreme Court held that a
constitutional challenge of a city ordinance *1525 was not rendered moot by the redrafting of the ordinance:
In this case the city's repeal of the objectionable
language would not preclude it from reenacting precisely the same provision
if the District Court's judgment were vacated.
In the instant case, the
government's decision to prepare an EIS and promise to withhold other funding
until the EIS is completed fall far short of the showing required under these
cases. The court is not persuaded
that there is "no reasonable expectation that the alleged violation will
recur." See Davis, 440 U.S.
at 631, 99 S.Ct. at 1383. This
conclusion is further strengthened by the fact that DOE has acknowledged no
legal duty whatsoever:
It has long been recognized that the likelihood of recurrence
of challenged activity is more substantial when the cessation is not based
upon a recognition of the initial illegality of that conduct. Walling v. Helmerich & Payne, Inc.,
323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944) (defendant's decision
to cease offering allegedly illegal contract terms two months after complaint
was filed but before trial did not moot controversy where defendant failed
to acknowledge illegality of conduct).
See also Alton & Southern Railway v. International Association
of Machinists and Aerospace Workers, 463 F.2d 872, 879 n. 13 (D.C.Cir.1972)
("a deliberate and persistent official interpretation is more likely
to identify a 'recurring controversy' situation").
Armster, 806 F.2d at 1359‑60
(footnote omitted). As already
noted, the government has consistently claimed that it has no legal duty to
prepare an EIS. It purports to
be doing an EIS now only because it chooses to, based on a "nonbinding"
Congressional suggestion.
C. Conclusion
Based upon DOE's past
conduct in this case there is no valid reason to assume DOE may not yet change
its position further. The court
therefore holds that the case cannot be rendered moot based on DOE's asserted
intent. Even more compelling
is the government's failure to give any assurances regarding (1) the timing
of the promised EIS, (2) the continued participation of the other non‑
DOE defendants in the Project, and (3) the continued involvement of all defendants
in the Project in advisory and permitting roles. Finally, the court finds that even if the case might otherwise
be deemed moot, it is clearly within the "voluntary cessation" exception,
and should not be dismissed short of a full adjudication on the merits.
IV. Motion for Summary
Judgment
Having concluded that
the case is not moot, the court moves on to address the merits of plaintiffs'
Motion for Summary Judgment. This
motion received no response from the government whatsoever on the merits.
A. The Government's Failure
to Respond
The government, in its
pretrial filings and in its failure to respond, has essentially conceded that
if its mootness argument fails, plaintiffs are entitled to summary judgment.
The government has failed to meet its burden under Rule 56(e) of the
Federal Rules of Civil Procedure:
When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon the mere allegations
or denials of the adverse party's pleading, but the adverse party's response,
by affidavits or as otherwise provided in the rule, must set forth specific
facts showing that there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.
(Emphasis added.)
Plaintiffs' motion for
summary judgment is amply supported by affidavits and other documentary evidence.
See discussion Section IV.B. infra.
The government can successfully oppose such a motion only by presenting
its own evidence sufficient to raise a material issue of fact. In this case, the government has not only failed to come
*1526 forward with admissible evidence,
it has failed even to submit arguments or pleadings on the issue.
B. The Merits of the Motion
Section 102(2)(C) of NEPA
requires federal agencies to prepare and file an EIS before undertaking "major
federal action significantly affecting the quality of the human environment."
42 U.S.C. § 4332(2)(C). The
court determined, in its January 8 Order, that Phases III and IV constitute
"major federal action" within the meaning of the statute, based
on the $5 million already appropriated to it, as well as the substantial overall
federal funding and active participation in the Project.
754 F.Supp. at 1466‑67.
Because DOE's reprogramming effort failed, and the $5 million appropriation
survives, there is no basis for revisiting that issue.
1. Ripeness
In the January 8 Order,
however, the court found issues of fact relating to the question of ripeness.
754 F.Supp. at 1465‑66. Specifically, because DOE claimed that
it was not necessarily committed to the Project, and because DOE professed
to have power to divert the appropriation to other uses, it was not clear
that the time was ripe to compel an EIS.
Given the developments of the last six months, however, the uncertainty
has evaporated. DOE's attempt
to reprogram the money failed. It
is this court's view that notwithstanding the government's attempt to argue
otherwise, see footnote 2 supra, DOE is required to use the money as directed
by Congress. 31 U.S.C. § 1301(a)
( "Appropriations shall be applied only to the objects for which the
appropriations were made except as otherwise provided by law."); see discussion and authorities in the
January 8 Order, 754 F.Supp. at 1464‑65. The matter is now ripe.
2. "Significantly Affecting the Quality of the Human
Environment"
Having established that
the government's participation in the Project constitutes "major federal
action," and that the action to compel an EIS is ripe, the only substantive
question that remains is whether the action is one "significantly affecting
the quality of the human environment." 42 U.S.C. § 4332(2)(C).
a. The Statutory Standard
Where an agency has determined
that the proposed action will not significantly affect the human environment,
a court must examine that determination for reasonableness. Friends of Endangered Species, Inc. v.
Jantzen, 760 F.2d 976, 986 (9th Cir.1985). The agency's decision should be upheld if it is reasonable,
i.e., if it is " 'fully informed and well‑ considered.' " Id. (quoting Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct.
1197, 1219, 55 L.Ed.2d 460 (1978)).
Because it is the EIS itself which will reveal whether and to what
degree the proposed action will affect the human environment, the preliminary
decision of whether to do an EIS is necessarily based on incomplete and uncertain
information. Accordingly, it
is not necessary for plaintiffs to prove significant effects on the environment
in order to prevail in their suit seeking an EIS.
It is sufficient to raise "substantial questions ... regarding
whether the proposed action may have a significant effect upon the human environment." Save the Yaak Committee v. Block, 840
F.2d 714, 717 (9th Cir.1988) (emphasis in original) (if such substantial questions
are raised, "a decision not to prepare an EIS is unreasonable");
Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture,
681 F.2d 1172, 1178 (9th Cir.1982).
The evidentiary offering
on this issue is entirely uncontroverted. As indicated, to carry their burden of proof plaintiffs need
only raise questions about whether the Project may significantly affect the
environment. The court is satisfied
that this burden has been met many times over in the series of expert witness
affidavits, scientific reports, illustrative maps, correspondence and other
documents filed by plaintiffs with their motion.
*1527 b. The Evidence
Offered to Show "Significance"
The land‑based aspect
of the Project itself contemplates a network of geothermal plants, wells,
power lines, roads and pipes over 26,000 acres, many of them located in the
Wao Kele O Puna forest. In 1981,
then Governor Ariyoshi formally designated the Wao Kele O Puna forest a Natural
Area Reserve, in recognition of its importance as "an environmental and
natural heritage site" as well as a "research site" that would
"preserve a gene pool of native plant and animal species, particularly
of rare and endangered species."
Plaintiffs' Exhibit 26 at 2‑4. This Natural Area Reserve designation was later revoked in
a "land exchange" in order to facilitate the proposed geothermal
development.
In the hearings on the
land exchange proposal, James Jacobi of the U.S. Fish and Wildlife Service
("FWS", a defendant in this action) testified that the forest is
"a unique dynamic ecosystem, valuable for both research on and management
of the lowland rain forest habitat on the island of Hawaii." Plaintiff's
Exhibit 29 at 2. He cautioned
against the adverse impact geothermal development would have on the ecosystem,
as well as the endangered plant and animal species found there. Id.
In addition, three experts‑‑an
ornithologist, a geneticist, and a botanist‑‑ all affiliated in
some way with the University of Hawaii and intimately acquainted with native
Hawaiian species and habitats, have submitted affidavits expressing grave
concern for the environmental impact of the Project with respect to each of
their respective fields. These affidavits alone, uncontroverted by any evidence submitted
by the government, easily raise the "substantial questions" of possible
environmental impact sufficient to require an EIS under that provision of
the statute.
Plaintiffs supplement
these evidentiary offerings with reports discussing everything from the Project's
economic impact to its speleological impact. [FN6] There is also substantial evidence submitted
on the impact of the deep‑ water cable aspect of the Project on Hawaii's
marine environment. The court
is impressed that by any measure, plaintiffs have met their burden, and that
the Project is one that may significantly affect the quality of the human
environment.
FN6. "Speleology" is defined as the study of caves.
C. Conclusion
Having demonstrated "major
federal action" in the previous hearing, see 754 F.Supp. 1450, and now
having established ripeness and "significance," plaintiffs have
proven their case on the merits. Accordingly,
they are entitled to summary judgment.
V. Motion for an Injunction
on Federal Participation Until the EIS is Complete
In addition to the injunction
ordering the immediate preparation of an EIS, to which plaintiffs are entitled
by virtue of the summary judgment hereby granted, plaintiffs seek an injunction
barring any further federal participation in the Project until that EIS is
completed. [FN7] The court finds
that because plaintiffs have already prevailed in their action, there is no
point in engaging in the typical "preliminary injunction" analysis.
See, e.g., United States v. Odessa Union Warehouse Co‑op, 833
F.2d 172, 174 (9th Cir.1987). The "likelihood of success on the
merits" and the "balance of hardships" are not meaningful concepts
given the summary judgment decision already rendered.
FN7. It is noteworthy that Plaintiffs seek to enjoin only
the federal participation in the Project.
There is authority suggesting that in a case such as this one, where
the challenged action is a cooperate federal‑state enterprise, all activity
may be enjoined pending preparation of an adequate EIS. Biderman v. Morton, 497 F.2d 1141, 1147
(2d Cir.1974) ("It is well settled that non‑federal parties may
be enjoined, pending completion of an EIS, where those non‑federal entities
have entered into a partnership or joint venture with the Federal Government,
and are thus recipients of federal funding"); see also Dalsis v. Hills, 424 F.Supp. 784, 787 (W.D.N.Y.1976).
*1528 The important principle here is the court's power
to fashion an appropriate remedy to serve the purposes of NEPA. In the January 8 Order, the court drew
on the regulations as well as Ninth Circuit authority to define the fundamental
purposes for NEPA's EIS requirement:
NEPA's clear intent, as interpreted by the accompanying
regulations [is manifest]:
The [environmental impact] statement shall be prepared
early enough so that it can serve practically as an important contribution
to the decisionmaking process and will not be used to rationalize or justify
decisions already made.
40 CFR § 1502.5. The Ninth Circuit has joined in this refrain, stressing that
"[t]he purpose of an EIS is to apprise decision‑makers of the disruptive
environmental effects that may flow from their decisions at a time when they
'retain[ ] a maximum range of options.' " Conner v. Burford, 848 F.2d 1441, 1446
(9th Cir.1988) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C.Cir.1983))
(emphasis added), cert. denied sub nom. Sun Exploration and Production Co.
v. Lujan, 489 U.S. 1012 [109 S.Ct. 1121, 103 L.Ed.2d 184] (1989).
In any case, the statement "must be prepared before any irreversible
and irretrievable commitment of resources."
Conner v. Burford, 848 F.2d at 1446.
The Ninth Circuit has further warned that "delay in preparing
an EIS may make all parties less flexible.
After major investment of both time and money, it is likely that more
environmental harm will be tolerated."
Environmental Defense Fund v. Andrus, 596 F.2d 848, 853 (9th Cir.1979).
754 F.Supp. at 1461.
If these purposes of NEPA
are to be served, no further federal resources may be committed to the Project
until the EIS is completed. If
the EIS is to play any role at all in the decisionmaking process, if the serious
environmental concerns raised in this case are to be given any weight at all
in the planning and fashioning of this Project, all federal participation
in the Project itself, with the exception of work and funding necessary to
accomplish the preparation of an EIS, must be suspended until that EIS can
be prepared and filed.
Federal "participation"
is defined for purposes of this order to include any decisionmaking or facilitating
role in the Project. The government may not fund the Project, process permit applications
or issue permits, or participate in interagency meetings in such a way as
to further the development of the Project. The bar on federal participation will not, however, prevent
the government from attending interagency meetings and otherwise keeping itself
apprised of the Project's status.
The government has taken
this Project as far as it possibly can without complying with NEPA. The policies embodied in NEPA will tolerate
nothing short of an absolute bar on further federal participation, as defined
herein, in the Project until NEPA is complied with.
VI. Conclusion
For the reasons herein
stated, plaintiffs' motion for summary judgment is GRANTED, the government's
motion to dismiss the case for mootness is DENIED, and the government is ordered
to commence forthwith the preparation of an EIS in compliance with NEPA, so
as to address the serious concerns raised regarding the environmental impact
geothermal development as proposed may have upon the land and within the waters
of the State of Hawaii. The government
is‑‑i.e., all defendants are‑‑permanently enjoined
from any further participation in the Project other than the funding and work
necessary for the preparation of the EIS itself until such EIS is complete.