of each year when final budget decisions are made. If no final, definite budget is in existence prior to that time, defendants should, to the fullest extent possible, prepare an impact statement that considers the various alternatives available at that time.
The Court's conclusion that defendants need not wait until final budget decisions have been reached before preparing an impact statement also finds support in the case law. The courts are in agreement that "federal action" within NEPA covers "proposals" as well as final decisions. The concept of NEPA is that officials give thought to the consequences on the environment before a significant project is launched. Therefore, what is assessed is "proposed action, not a fait accompli." City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). Moreover, the courts have repeatedly held that an impact statement should be prepared at as early a stage as possible in the development of a proposal to ensure compliance with the Act. Calvert Cliffs' Coord. Com. v. U.S. A.E. Com'n, supra. For the foregoing reasons the Court is of the opinion that it is irrelevant that final budget decisions are presently made in a very short time frame. NEPA requires defendants to draft an impact statement as early as possible and in time to accompany "proposals" through the agency review process.
Nor does the Court believe that under the rationale of plaintiffs' argument "hundreds or thousands of annual environmental impact statements would have to be prepared . . ." (Defendants' Reply Memorandum, p. 23). NEPA only requires that impact statements be prepared on those legislative proposals and federal actions significantly affecting the environment. Appropriation proposals for most federal agencies would not appear to pose a threat to the environment and therefore no impact statement would be required. In any event, even as to those agencies whose operations do significantly affect the environment, only one impact statement is required for the appropriation proposal. When it is noted that the Department of Transportation prepared 196 impact statements in just the first six months of 1974, C.E.Q., Fifth Annual Report, p. 390 (1974), it is difficult to accept the contention that the cumulative impact of today's decision will impose an insurmountable burden.
Defendants also argue that the budget process is privileged until the President adopts the budget and presents it to the Congress. OMB Circular No. A-10. Defendants therefore maintain that an impact statement cannot be prepared and made public until after the President has transmitted the budget proposal to Congress. Defendants claim that budget information is privileged under the Freedom of Information Act (FOIA), exemption 5.
Exemption 5 of the FOIA, 5 U.S.C. 552(b)(5), covers "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
In EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), a landmark case in construing exemption 5, the court considered the legislative history of exemption 5 and concluded that "Congress intended to incorporate generally the recognized rule that 'confidential intra-agency advisory opinions . . . are privileged from inspection.'" The court noted that the exemption was intended to protect the deliberative or policy-making processes of government. Thus, for purposes of applying exemption 5, a distinction is drawn between "predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and post-decisional memoranda setting forth the reasons for an agency decision already made, which are not." Renegotiation Board v. Grumman Aircraft, (1975) 421 U.S. 168 at 184, 95 S. Ct. 1491, 44 L. Ed. 2d 57.
Appropriation proposals are a type of communication made after the budget decision has been made or the policy already adopted, and hence "their disclosure poses a negligible risk of denying to agency decision-makers the uninhibited advice which is so important to agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152 n.19, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975). Budget appropriation requests are thus the final product in the agency's decision-making process with regard to budgets, and as such, cannot be termed pre-decisional. Final decisions are disclosable under the FOIA. Since budget appropriation requests are final and cannot be termed pre-decisional, the Court concludes that such appropriation requests, whether made by the Department of the Interior or the Office of Management and Budget, both of which are federal agencies, are not privileged from disclosure under exemption 5 of the FOIA. A fortiori, environmental impact statements accompanying budget requests, are also not protected from disclosure under exemption 5. Whether hardship or inconvenience may result, requests for relief should be addressed to the Congress, not to the courts.
Finally, defendants assert that their proposed programmatic statement will serve as the equivalent of an environmental impact statement.
Defendants are preparing such a draft statement which will discuss the entire operation and administration of the Refuge System, including funding alternatives. The final programmatic statement is planned to be completed by November, 1975. Accordingly, defendants argue plaintiffs' complaint is premature and ask the Court to stay this case pending completion of the final programmatic statement.
Admittedly, the programmatic statement is designed to provide an overview of the Refuge System and will only secondarily emphasize the environmental impacts on the system of budget requests. Although the programmatic statement will serve as the foundation for subsequent environmental analyses and for supplemental impact statements, the statement will only be "periodically updated" with no definite time frame mentioned for revision.
Like the court in Natural Resources Defense Council, Inc. v. Morton, supra, we are convinced that the programmatic statement is "insufficient to fulfill the purpose defined for an impact statement." The programmatic statement is designed to consider the general long-range goals of the Refuge System whether or not such goals are being considered by defendants in developing appropriation proposals. The programmatic statement is thus directed at a different subject than the environmental impact statement and cannot serve as a substitute. "A programmatic statement may be very helpful in assessing recurring policy issues and insuring consideration of the cumulative impact that numerous decisions might have on the environment, but that does not mean that it will suffice to fulfill the NEPA mandate. The Court is convinced that the . . . programmatic statement alone, . . . does not permit the 'finely tuned and "systematic" balancing analysis' mandated by NEPA." Natural Resources Defense Council, Inc. v. Morton, supra.
For the foregoing reasons plaintiffs are granted summary judgment because there is no genuine issue as to any material facts, and the plaintiffs are entitled to judgment as a matter of law. An appropriate order has been entered.
John H. Pratt United States District Judge
June 6, 1975
This matter came before the Court on the parties' cross-motions for summary judgment, and defendants' alternative motion for a stay of proceedings, and the Court, having considered the parties' supporting memoranda of points and authorities and the exhibits, and having heard oral argument, it is hereby this 6th day of June, 1975,
ORDERED, that plaintiffs' motion for summary judgment for declaratory relief is granted on the grounds that the National Environmental Policy Act, 42 U.S.C. 4231, et seq. requires:
(1) Defendants to prepare, consider, and disseminate environmental impact statements on annual proposals for financing the National Wildlife Refuge System;
(2) Defendant Director of the Office of Management and Budget to develop formal methods and procedures which will, with respect to the Office's own administrative actions and proposals, identify those agency actions requiring environmental statements to be prepared, considered, and disseminated.
Since defendants have not prepared, considered, or disseminated environmental impact statements concerning their proposals for financing the National Wildlife Refuge System and defendant Director of the Office of Management and Budget has not developed the requisite formal methods and procedures, they are in violation of the National Environmental Policy Act and plaintiffs are entitled to declaratory relief; and it is further
ORDERED, that plaintiffs' motion for summary judgment for injunctive relief as to the defendants' violation of the National Environmental Policy Act be, and the same hereby is, granted; and it is further
ORDERED, that the motion of defendants for summary judgment be, and the same hereby is, denied; and it is further
ORDERED, that defendants' alternative motion for a stay of proceedings be, and the same hereby is, denied; and it is further
ORDERED, that this case is hereby dismissed.
John H. Pratt, United States District Judge
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