The January 1991 edition (scroll down on the linked page to see article listings) of Environment Hawai`i reviewed state involvement in the development of geothermal energy. At the same time, the federal government’s participation in this project was being challenged in U.S. District Court by the Sierra Club Legal Defense Fund on behalf of two Hawai`i-based environmental groups, the Blue Ocean Preservation Society and Greenpeace Foundation, and the California-based Sierra Club.
On June 25, 1991, Judge David A. Ezra issued his order in the case, granting the groups exactly what they had sought: as permanent injunction against further federal participation until the U.S. government agencies involved have complied with requirements of the National Environmental Policy Act – entailing among other things, preparation of an environmental impact statement.
The judge’s ruling contains a comprehensive summary and analysis of the events and arguments leading to his decision. Here are excerpts from Ezra’s ruling. Legal citations have been omitted; subheadings are our own:
As discussed by the Court in its January 8 Order, Congress has thus far contributed $34.7 million, over 80 percent of the total funding, to Phases I and II of the project, and had recently appropriated an additional $5 million toward Phase III.1 This $5 million was the first of three such appropriations anticipated from Congress over the next three years.
At the hearing on December 17, 1990, counsel for the government suggested that the $5 million appropriation did not bind DOE [the Department of Energy] to use the money for the project, and that DOE had not yet decided whether to continue in 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.
‘Reprogramming’
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 … 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 explicitly acknowledges that an agency is expressly forbidden from spending a congressional appropriation for purposes other than those for which they were appropriated.
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 appropriate congressional committees. Until Congress acts on the request, the funds are placed into a special DOE reserve account. If the request for reprogramming is not approved, the funds must be used for the purposes stated in the original appropriation….
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 the DOE to use “such funds as are necessary from amounts previously provided to the state of Hawai’i for geothermal resource verification and characterization to conduct the necessary environmental assessments and/or environmental impact statement (EIS) for the geothermal initiative to proceed.” 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.
Evasive Action
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.” 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. 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.” 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. 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.
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, the court finds that Phase III also satisfies that requirement…
Is the Question Moot?
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…. Plaintiffs, however, take little comfort in DOE’s “decision” to perform an EIS and 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. 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. 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 again from changing its position…
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.
A Failure to Defend
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…
Plaintiffs’ motion for summary judgment is amply supported by affidavits and other documentary evidence. 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 forward with admissible evidence, it has failed even to submit arguments or pleadings on the issue.
In the January 8 order, however, the court found issues of fact relating to the question of ripeness. 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… The matter is now ripe.
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.” …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…”
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.
The Injunction
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… 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 decision-making process and will not be used to rationalize or justify decisions already made.’.. [T]he statement ‘must be prepared before any irreversible and irretrievable commitment of resources.’ 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.'”
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 decision-making 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. 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.
1 Phase I involved building a small demonstration plant. Phase II involved research into the feasibility of the underwater cable needed to export power from the Big Island. Phase III, to quote from Ezra’s ruling, “is now in progress and involves the drilling of 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.”
Volume 2, Number 2 August 1991
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