The opinion of the court was delivered by: WADDY
Plaintiff, the National Organization for the Reform of Marijuana Laws (NORML), a non-profit membership corporation that has for its principal focus the decriminalization of marijuana, has brought this action on behalf of itself and its members against the Department of State, the Agency for International Development (AID), the Drug Enforcement Administration (DEA), and the Department of Agriculture. Plaintiff seeks a declaratory judgment that the defendants are in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, et seq.1 for failing to prepare and consider an environmental impact statement with respect to United States participation in herbicide spraying of marijuana and poppy plants in Mexico.
Plaintiff also seeks an injunction (1) enjoining defendants from obligating or expending any funds, or providing any other support or assistance to the herbicide spraying program in Mexico unless and until they have fully complied with NEPA, (2) directing defendants to inform the Government of Mexico that an environmental impact statement is required before additional United States assistance can be made available, and to use their "best efforts" to persuade the Mexican Government to call a moratorium on the herbicide spraying program until such an impact statement is prepared, and (3) enjoining defendants from providing support or assistance to herbicide spraying programs in any other country until they prepare an environmental impact statement for the program in that country.
This case came before the Court for a hearing on the merits which, with the agreement of counsel for both sides, was advanced and consolidated with the hearing on plaintiff's application for a preliminary injunction under Rule 65(a)(2) of the Federal Rules of Civil Procedure. Jurisdiction of these federal questions is provided by 28 U.S.C. § 1331(a).
Contentions of the Parties
NORML contends that United States participation in the Mexican spraying program constitutes a "major Federal actions significantly affecting the quality of the human environment", and that under Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), an environmental impact statement should have been prepared, circulated, and considered before initiation of the federal action. Plaintiff alleges significant effects of the spraying program both in this country and in Mexico, and, consequently, urges the Court to declare NEPA applicable to United States actions having extraterritorial impacts. It argues that the only remedy which will effectively implement the public policy of NEPA is a restraining order barring continued United States involvement in the spraying operation until an impact statement has been prepared and fully considered.
While NORML remains peculiarly aware of the general criminal status of marijuana usage,
it contends that paraquat adulterated marijuana converts an otherwise harmless activity into a serious health hazard for a broad segment of the nation's citizenry. Plaintiff asserts that, "the Defendants' actions are far more 'culpable', and threaten far more serious injury to the public health, safety, and welfare, than the conduct of Plaintiff's members in consuming marijuana."
Defendants take the position that the Mexican herbicide spraying program is just that -- a Mexican undertaking over which this country exercises minimal influence. They offer that narcotics eradication is of such great importance to the Government of Mexico that that country will continue to spray marijuana and poppies even if the United States should curtail its assistance. Thus, defendants conclude, plaintiff's alleged injuries will not be redressed by a restraining order, and they urge that an injunction not issue since it would prove a futile exercise of this Court's equitable powers.
Since the filing of this lawsuit on March 13, 1978, defendants have commenced certain activities which, they argue, change the posture of this case so as to effectively render moot plaintiff's cause of action. In conjunction with various other government agencies, defendants are now preparing an environmental impact statement on the effects of the Mexican eradication program in the United States, and are planning to prepare what they term an "environmental analysis" of the program's effects in Mexico. Both studies are estimated by the State Department to be completed by the fall of 1978. Defendants are also now engaged in an expedited evaluation of alternatives to paraquat for use in eradicating Mexican marijuana. Having agreed to prepare impact statements regardless of the outcome of this litigation, they contend that such relief need not be directed by the Court. In this connection, defendants urge the Court not to reach the question of extraterritorial application of NEPA, but simply assume its applicability without deciding the issue.
Defendants also challenge the propriety of NORML's seeking the aid of the Court in furthering an alleged "right" to use marijuana, when its use in this country necessarily involves illegal activity either through sale or possession. Plaintiff, it is suggested, lacks "clean hands" in attempting to enlist the Court's equitable injunctive powers.
Preliminarily though, defendants challenge plaintiff's standing to bring this NEPA action.
The standing challenge is based primarily upon defendants' view that NEPA does not protect illegal conduct; consequently, plaintiff has not shown an Article III injury to a legal right. Succinctly, there is no legally protected right to smoke marijuana which triggers NEPA's requirements or satisfies the Constitutional requisites of Article III.
Though NORML has alleged health, recreational, and informational injuries from defendants' actions, the defendants argue that plaintiff may only assert the marijuana, or health, interests of its members. NORML, however, contends that all three interests are within the zone of protection provided by NEPA.
The Court is of the opinion that defendants' position improperly narrows the scope of NEPA's protections. This Circuit's decisions point towards an expansive view of the types of harm cognizant under NEPA. For example, in Jones v. District of Columbia Redevelopment Land Agency, 162 U.S. App. D.C. 366, 499 F.2d 502 (1974) Chief Judge Bazelon explained that:
The harm against which NEPA's impact statement requirement was directed was not solely or even primarily adverse consequences to the environment; such consequences may ensue despite the fullest compliance. Rather NEPA was intended to ensure that decisions about federal actions would be made only after responsible decisionmakers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs. Thus, the harm with which courts must be concerned in NEPA cases is not, strictly speaking, harm to the environment, but rather the failure of decisionmakers to take environmental factors into account in the way that NEPA mandates.
The situation of the plaintiff organization in Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S. App. D.C. 395, 481 F.2d 1079 (1973) is not dissimilar to that of NORML. The Scientists' Institute's activities included making available to the public scientific information bearing upon important social issues and thereby stimulating public discussion of public policy questions. NORML appears to be no less a catalyst in its ...