Based upon these declarations alone, the court cannot conclude that the record indicates bias or bad faith in the preparation of the EIS. It is to be expected that technical reports included in an EIS will go through several drafts and numerous revisions before they are finally made public. The role of a court in evaluating the adequacy of technical reports is not to quibble with each definitional or semantic change between drafts, but rather to ensure that the final EIS provides sufficient detail to educate the public and the decision-makers. The defendants here have offered neutral and good faith reasons for rejecting the conclusions and methodology of the three former CalTrans employees who have alleged irregularities in the preparation of the EIS. These explanations are sufficient to rebut the plaintiffs' claims of bad faith and bias.
Sierra Club, Calif., supra, 664 F.Supp. at 1337 (EIS case) (emphasis added).
Similar considerations compel the same conclusion in this case. While the rapidity with which a second DEA containing a different set of conclusions was issued lends the appearance plaintiffs suggest, several factors rebut the conclusions plaintiffs seek to draw from the agency's apparent shift in position. The 1st DEA was prepared by an employee of PaDER, Timothy Leininger, and was the initial document in a lengthy decision-making process in which several state and federal agencies participated. It was a starting point, nothing more. From all appearances, Leininger prepared the actual document by himself, or working with only his immediate staff, and PaDER immediately disavowed his conclusions and his methods as soon as the document was completed and circulated for review by others. At or about that time, Parrish replaced Leininger and re-analyzed the issues. This, coupled with the fact that we find the conclusions and findings of the final EA otherwise sound, dispel the implication that no serious analysis was performed and that the outcome was decided before the analysis was begun. Agencies are entitled to re-think and revise initial impressions, and are not bound by the opinions of staffers, particularly those formed early in the review process before analysis is anywhere close to completion.
Plaintiffs argue, along the same lines, that the procedure by which the final EA was adopted was flawed because the early EA drafts were prepared by PaDER and other state staffers with, apparently, little or no involvement by NGB and because Major General Sajer issued a FONSI on December 5, 1988 (AR-51). We are not convinced that this was a procedural irregularity, as it appears to us to have been an interim step in the process by which the EA FONSI was ultimately approved by NGB when signed by General Navas a year later. However, rather than enmesh ourselves in the procedural requirements surrounding the processing of an EA, we will assume that plaintiffs are correct. That being the case, the result is, nevertheless, not invalidated. Procedural irregularities in the manner an EA FONSI is adopted do not invalidate findings and conclusions otherwise defensible. See: Waltham, supra, 786 F.Supp. at 140.
With respect to plaintiffs' contention that internal dissension within the reviewing agencies
invalidates the process and the conclusions reached, we draw the opposite conclusion. (See: Record Document No. 94, pp. 31-36) Internal dissent does not invalidate the process or nullify the result. Healthy debate of the issues illustrates that the NEPA process functioned as Congress intended and that the issues were given full and fair consideration, and that the agencies involved took a "hard look" at the issues, seriously debated the pros and cons, and arrived, ultimately, at a thoroughly-reasoned decision.
As for the related contention that the PAARNG acted prematurely in moving personnel and equipment to Mid-State and beginning operations before the EA/FONSI became final upon authority of General Navas in January, 1990, there are disputed issues of fact. Plaintiffs contend that actual operations were begun long before the EA became final, and that as early as March, 1989, 104th Aviation personnel and equipment were moved to Mid-State and training operations had begun. They cite, as proof of their contention, a directive dated April 7, 1989 from NGB directing that helicopters moved to Mid-State to Avoca without NEPA compliance be returned.
Plaintiffs contend that the PAARNG ignored the directive and never moved personnel or equipment back to Avoca. (See: Record Document No. 94, pp. 34-35)
Defendants dispute these contentions. They contend that there was no "move" to Mid-State prior to execution of the January, 1990 stationing order by General Navas. (See: Record Document No. 100, pp. 9-10) Although their position is inconsistent with the April 7, 1989 NGB directive, we need not, and cannot, resolve the factual discrepancy.
In any event, the dispute is not material to our ruling on the parties' motions and does not preclude summary judgment. Whether the 104th Aviation moved prematurely, prior to completion of the NEPA process, and ignored an NGB directive to move personnel and equipment back to Avoca are not issues before this court. Plaintiffs filed this action seeking to compel preparation of an EIS. They do not allege a cause of action for or seek redress for the allegedly preemptive move. (See: plaintiffs' complaint, filed June 11, 1990, pp. 9-25) Whether defendants acted prematurely and/or in violation of NGB relocation orders is, therefore, not an issue before us. In addition, as discussed previously,
alleged procedural irregularities in the manner an EA FONSI is adopted do not invalidate findings and conclusions otherwise defensible. See: Waltham, supra, 786 F.Supp. at 127.
Plaintiffs argue that the level of public opposition associated with the project mandates further study. We disagree. Although the wisdom of the move has been debated publicly since it became public, that alone does not mandate an EIS. If it did, no project opposed by conservation groups could go forward without an EIS.
Controversy is not "necessarily . . . equated with opposition." North Carolina v. F.A.A., 957 F.2d 1125, 1133 (4th Cir. 1992). If it were, public outcry and emotion, "not the reasoned analysis" in an EA would determine whether the government is required to go through the costly and time-consuming procedure of preparing an EIS for every project. "The outcome would be determined by a "heckler's veto.'" North Carolina v. F.A.A., supra, 957 F.2d at 1133-34.
Further, the "controversy" to which the regulations refer
is equated with scientific debate or a "substantial dispute" over the "size, nature or [environmental] effect" of the action contemplated, not the existence of public opposition, as plaintiffs' argument infers. Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.1973). To rule otherwise would place the decision in the hands of opponents of a federal action and require preparation of an EIS for every federal action opposed by vocal, well-organized critics, despite the absence of other criteria warranting further environmental study under NEPA. Id. Accord: Town of Orangetown v. Gorsuch, 718 F.2d 29, 39 (2d Cir.1983) ("Opposition and a high degree of controversy . . . are not synonymous.") and Coalition on Sensible Transportation, Inc. v. Dole, 642 F.Supp. 573, 587 (D.C. 1986).
There is, here, no evidence that the 104th Aviation's use of Mid-State is the subject of scientific debate or a "substantial dispute" over the "size, nature or [environmental] effect" of that use, and hence, no evidence of the type of controversy to which NEPA regulations refer.
Defendants have done all that NEPA requires. In concluding that an EIS was not warranted, they: (1) identified relevant areas of environmental concern; (2) took a "hard look" at the issues; (3) made a convincing determination that the project will not have a significant impact on the environment; and (4) took reasonable steps to reduce any potential impact to a minimum. Sierra Club v. U.S. DOT, supra, 753 F.2d at 127 and Coalition v. Dole, supra, 826 F.2d at 66-67. Defendants gave full consideration to all relevant issues and made a reasoned determination that no further study was warranted, having had before them sufficient data on which to base an informed decision. Nothing more was required of them under NEPA. See generally: North Carolina v. F.A.A., supra, 957 F.2d at 1133 and Waltham, supra, 786 F.Supp. at 124, 126-27. See also: Sierra Club v. U.S. DOT, supra, 753 F.2d at 129 and Sierra Club v. Marsh, 769 F.2d 868, 876-77 (1st Cir. 1985).
We will, consistent with that conclusion, enter an order granting defendants' motions for summary judgment and deny plaintiffs' cross-motion.
Plaintiffs' request for costs and counsel fees
Summary judgment will be entered in defendants' favor, rendering plaintiffs' request for costs and attorneys' fees under 28 U.S.C. § 2412
James F. McClure, Jr.
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 802 F. Supp. 1239.
ORDER - September 9, 1992, Filed
September 9, 1992
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. The motion to dismiss, or in the alternative, for summary judgment filed by the federal defendants (Record Document No. 62) is treated as a motion for summary judgment and is granted.
2. The motion for summary judgment filed by the Commonwealth defendants (Record Document No. 66) is granted.
3. The motion for summary judgment filed by plaintiffs (Record Document No. 93) is denied.
4. Plaintiffs' request for counsel fees under 28 U.S.C. § 2412 is denied as moot.
5. The Clerk of Court is directed to enter final judgment in favor of all defendants and against all plaintiffs.
6. The Clerk of Court is directed to close this case.
James F. McClure, Jr.
United States District Judge
JUDGMENT IN A CIVIL CASE - September 9, 1992, Filed
IT IS ORDERED AND ADJUDGED that judgment be and hereby is entered in favor of all Defendants and against all Plaintiffs.
September 9, 1992