process emphasized interdepartmental federal identification of coal reserves to be considered for leasing, whereas the activity system relied almost entirely upon industry and public nominations for the ascertainment of reserve tracts ripe for development.
The Secretary of the Interior, on January 26, 1976, announced the implementation of the new coal leasing policy (the long-term plan) based upon, inter alia, adoption of the Energy Minerals Activity Recommendation System. The new policy expressly lifted the moratorium on new major federal coal leasing which had been in effect since late 1970. The Secretary announced, however, that the short-term policy would be retained until the new competitive coal leasing system was fully operational.
In February 1976, the Assistant Comptroller General of the United States, Phillip Hughes, testified before the Senate Interior Subcommittee on Minerals, Materials and Fuels on the new coal leasing program. Mr. Hughes pointed out that the GAO had recently completed a study concluding that the need for a new federal coal leasing policy had not been clearly established, and that if such a need did in fact exist the Interior Department could not, under the new system, effectively administer a coal leasing program. (Pl. Ex. 19, at 2).
On April 1, 1976, the Comptroller General submitted a 70-page report to Congress outlining the deficiencies of the new program as analyzed by GAO.
On May 7, 1976, the Secretary of the Interior issued new regulations which effectively exempted "preference right" lease applications from the short-term criteria. 43 C.F.R. § 3521.1 (1977). The effect of these regulations was to confine the Department's short-term criteria to competitive leasing; "preference right" leases could and were issued without reference to the short-term criteria.
The Interior Department on June 1, 1976, issued a call for the nomination of specific federal coal leasing tracts as suitable or unsuitable for federal leasing. Also on that date, final regulations clarifying the procedures for the implementation of EMARS were issued. 43 C.F.R. § 3520 (1976), revised at 42 Fed. Reg. 4,452-57 (1977), (to be codified in 43 C.F.R. § 3525).
The Bureau of Land Management, on August 9, 1976, issued a statement that, pursuant to the nominations process which ended July 31, 1976, coal companies and private individuals had identified 680 tracts in eight states as areas upon which they would bid if offered for federal coal lease.
The Secretary on July 25, 1977 adopted new short-term leasing standards to correct abuses in short-term leasing under previous criteria. Federal Defendants' Memorandum in Response to the Court's July 5, 1977 Request, Appendix IV. These revised standards also would permit the issuance of any "preference right" lease, on an ad hoc basis, without limitation, and any competitive lease if,
(1) the lessee controls land which is contiguous to the land to be leased (there is no requirement that there be an existing mine in operation); and
(2) the amount of reserves to be leased does not exceed eight years as contracted for or expected levels of production; and
(3) no new major transportation facilities are to be constructed.
It is plaintiffs' basic contention that defendants' actions as outlined above have been pursued in the absence of an adequate final programmatic EIS and are therefore unlawful and invalid. We turn now to defendants' response on procedural as well as substantive grounds.
E. The Defendants' Jurisdictional Challenge
In their challenge to the jurisdiction of this Court, defendants argue that a recent amendment to the Mineral Leasing Act of 1920
expresses Congressional intent to confirm (or reaffirm) the new Coal Leasing Program and to adopt that program in its present form. Defendants state that Congress' willingness to accept the new program in its current posture renders the issue of the adequacy of the Coal Programmatic EIS moot. This contention is without merit.
After a careful review of the legislative history of the 1975 coal leasing amendments, we are unable to discover any evidence of Congressional intent to exempt the new coal leasing policy from the requirements of NEPA.
Without such a showing, the argument of lack of jurisdiction must fail.
F. The Defendants' Claim That The Controversy Is Non-Justiciable.
Defendants next contend that plaintiffs' challenge to the sufficiency of the final programmatic EIS is non-justiciable unless and until the program which is discussed in the EIS is implemented by specific, concrete application. This requires no extended response.
The Supreme Court's observation in Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976), a case which involved the question whether a regional EIS was required at all rather than the issue of non-justiciability, is relevant to defendants' assertion:
"The time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency's action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption. With the issuance of the final programmatic EIS and the implementation of the new coal leasing policy, this claim that the actions of the defendant have not sufficiently matured is impossible to accept. The issues raised herein are ripe for decision." 427 U.S. at 406 n.15.