Life of the Land Et Al. v. Brinegar, Secretary of Transportation, Et Al. ( 1973 )

414 U.S. 1052

94 S.Ct. 558

38 L.Ed.2d 341

LIFE OF THE LAND et al., applicants,
v.
Claude S. BRINEGAR, Secretary of Transportation, et al., respondents.
No. A-435.

Supreme Court of the United States

November 21, 1973

On motions to vacate order staying mandate and rinstating injunction of the Court of Appeals for the Ninth Circuit.

The motions of the State of Hawaii and of Kalihi-Palama Community Council et al., presented to the Court to vacate the stay and injunction entered by Mr. Justice DOUGLAS on November 7, 1973, are granted.

Mr. Justice DOUGLAS, dissenting.

1

This case involves the sufficiency and objectivity of an Environmental Impact Statement prepared in connection with the construction of the Reef Runway Project at Honolulu International Airport. The project is a 12,000-foot runway to be built off-shore on filled reef-land in the Keehi Lagoon. The construction will involve the dredging of some 14 million cubic yards of coral and silt, consuming over 1,200 acres of ocean coral reef. The EIS, required by the National Environmental Policy Act of 1969,1 was prepared in this case as a 'joint project' by the Federal Aviation Agency, the State of Hawaii, and the Ralph M. Parsons Company.2 The problem, as the Court of Appeals noted, is that Parsons is a private firm under contract to render management consulting services for the project in the event it is approved and thus has a strong 'financial interest in an affirmative decision on the proposed project.' 485 F.2d 460, 467 (CA9 1973). The court, however, found nothing 'in either the wording of NEPA or the case law, which indicates that, as a matter of law, a firm with a financial interest in the project may not assist in the drafting of the EIS.' Id., 467.

2

It seems to me a total frustration of the entire purpose of NEPA to entrust evaluation of the environmental factors to a firm with a multimillion dollar stake in the approval of this project. NEPA embodies the belated national recognition that we have been 'brought to the brink' by myopic pursuit of technological progress and by a decision-making mechanism resting largely on the advice of vested interest groups.3 A long standing policy of listening only to those with enough money to be heard has left our country scarred with a continuum of environmental abcesses. The oil-auto-concrete interests have long urged the necessity of pavng over the countryside with highways. The same oil interests which argued the advisability of off-shore drilling at Santa Barbara pressed for a transAlaska pipeline and obtained a concession in the Act that in effect exempted the pipeline from NEPA to the extent that it curtailed judicial review.4 Other interests, notably those waiting for the great killing in nuclear fission, got temporary relief from NEPA.5 Our congested land and fouled air bear grim testimony to the success of Detroit in making fortunes out of the destruction of elemental parts of our biosphere.

3

We have listened as the manufacturing-industrial complex advised us on the desirability of fueling 'progress' by stripping our land and using our rivers, lakes, and atmosphere as technological sewers. We have allowed commercial recreational interests to determine the advisability of 'developing' our dwindling wilderness.6 NEPA was designed to correct in part the information void underlying our national decision-making mechanism. Congress knew what happens when we heed the counsel only of those who measure national advancement by GNP and the Dow Jones industrial average. Congress knew that we can trust them to supply us with voluminous economic data, but it also knew that we cannot trust them to supply us with an improved quality of life. They are not advocates of the interests of mountains, forests, streams, rivers, oceans, and coral beds, or of the wildlife that inhabit them or the people who enjoy them. They are not useful when it comes to appraising the values of an unspoiled meadow or glacier or reef, for they think only in terms of dollars. They lack the sensitivity to be entrusted with evaluating what effect dredging will have on our estuaries. These estuaries are essential in part of the life cycle of two-thirds of the marine life. Dredging makes these estuaries biological deserts for years to come. Congress knew that the final say on these environmental matters should not be under the direct or indirect control of those who plan to make millions out of their destruction.

4

The people have long heard and too long heeded the advice of those with a monetary stake. NEPA was designed to augment that information with an analysis of other factors. Whether that analysis can be undertaken by those whose economic voice is already heard is an issue as yet undecided in this Court.7 It is an issue worthy of our determination and should be decided before the ongoing construction of the Reef Runway does irreparable injury to the environmental interests here involved. These are the considerations that led me to grant the stay. I would maintain the status quo until the termination of this litigation.

1

42 U.S.C. § 4321 et seq.

2

As the court below notes: '[A]n employee of Parsons testified as to the active involvement of the Federal Aviation Agency in the EIS preparation process. The Parsons employee concluded that the EIS 'was more or less a joint effort by Parsons, the State and the F. A. A.' 485 F.2d 460, 467 (CA9 1973).

3

'There may be controversy over how close to the brink we stand, but there is none that we are in serious trouble.' H.R.Rep. No. 91-378, 91st Cong., 1st Sess., 4 (1969), U.S. Code Cong. & Admin.News 1969, p. 2754.

'By land, sea, and air, the enemies of man's survival relentlessly press their attack. The most dangerous of all these enemies is man's own undirected technology. The radioactive poisons from nuclear tests, the runoff into rivers of nitrogen fertilizers, the smog from automobiles, the pesticides in the food chains, and the destruction of topsoil by strip mining are examples of the failure to foresee and control the untoward consequences of modern technology.'

N. Y. Times, May 3, 1969, at 34, col. 2, quoted in H.R.Rep. No. 91-378, 91st Cong., 1st Sess., 3 (1969), U.S.Code Cong. & Admin. News 1969, p. 2753.

4

Section 203(d) of the Act provides in part:

'The actions taken pursuant to this title which relate to the construction and completion of the pipeline system, and to the applications filed in connection therewith necessary to the pipeline's operation at full capacity, as described in the Final Environmental Impact Statement of the Department of the Interior, shall be taken without further action under the National Environmental Policy Act of 1969; and the actions of the Federal officers concerning the issuance of the necessary rights-of-way, permits, leases, and other authorizations for construction and initial operation at full capacity of said pipeline system shall not be subject to judicial review under any law except that claims alleging the invalidity of this section may be brought within sixty days following its enactment, and claims alleging that an action will deny rights under the Constitution of the United States, or that the action is beyond the scope of authority conferred by this title, may be brought within sixty days following the date of such action. A claim shall be barred unless a complaint is filed within the time specified.'

5

42 U.S.C. § 2242, an amendment of the Atomic Energy Act of 1954, grants the Atomic Energy Commission the authority to issue temporary operating licenses for nuclear power reactors and provides that, under certain conditions, reactor operation may begin before environmental impact studies pertinent to full term operation have been completed. See The AEC Amendment: Temporary Licensing of Nuclear Reactors, 10 Harv.J. of Leg. 236 (1973).

The recent Pugwash Conference held in Finland August 30-September 4, 1973, which included 100 scientists (20 each from the United States and USSR), reported as follows on nuclear energy:

'The as yet unsolved problem of waste management and the possibly unsolvable [in an absolute sense] problems of catastrophie releases of radioactivity and diversion of bombgrade material, combine to create grave and justified misgivings about the vast increase in the use of nuclear power that has been widely predicted. The wisdom of such an increase must at the present time be seriously questioned.' Cong.Rec. Oct. 8, 1973, S. 18727.

6

See, e. g., the extensive skiing development of the Mineral King Valley in Sequoia National Forest. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

7

Congress noted in enacting NEPA that '[a]n independent review of the interrelated problems of environmental quality is of critical importance if we are to reverse what seems to be a clear and intensifying trend toward environmental degradation.' H.R.Rep. No. 91-378, 91st Cong., 1st Sess., 3 (1969) U.S.Code Cong. & Admin.News, 1969, p. 2753 (emphasis added).