The factual background of this case may be briefly stated. Paraquat is a pesticide used to control annual broadleafed weeds, such as marijuana. When sprayed on marijuana, paraquat destroys the plants within 24 to 72 hours, turning the plants yellowish and making them brittle and unsalable. If, however, the plants are harvested immediately after spraying and removed from sunlight, the marijuana remains saleable, although some residue of the paraquat may remain, potentially causing health hazards to marijuana consumers.
In 1981, the FDLE, concerned about extensive illegal cultivation of marijuana in the state, selected paraquat as an herbicide effective in marijuana eradication. Florida and the DEA have, through aerial surveying, located over a hundred marijuana fields. The FDLE plans, within the next few weeks, to spray paraquat on some of the fields with backpack sprayers and trucks.
The extent of federal involvement in this program is, as will be seen below, of central significance in the resolution of the legal issues posed by defendants' motions. The DEA has provided financial and technical assistance to the State of Florida for marijuana law enforcement. Such assistance has included training in aerial spotting techniques and financial assistance for aerial spotting equipment. The DEA has also shared technical information on herbicides. In fiscal year 1981, the DEA disbursed $14,000 to the State of Florida for marijuana law enforcement. In fiscal year 1982, DEA has budgeted $60,000 to assist in marijuana law enforcement of which approximately $30,000 has been authorized for expenditure to date. However, none of this money has been used for herbicidal spraying, and DEA personnel would not be involved in the actual spraying. FDLE officials have stated, in affidavits submitted in this action, that the State intends to eradicate marijuana with paraquat without regard to whether the DEA continues to provide financial and technical assistance to the state for other aspects of marijuana law enforcement.
Even though the DEA itself does not conduct or finance herbicidal eradication, DEA officials have prepared an assessment of the environmental effect of use of paraquat on marijuana. The environmental assessment was prepared to determine whether DEA's involvement in the paraquat spraying program is a "major federal action significantly affecting the quality of the human environment" that requires preparation of an EIS under the NEPA. The DEA Administrator approved the environmental assessment on July 10, 1981, and concluded that DEA is insufficiently involved in the spraying program to require preparation of an EIS. The Administrator also concluded that the spraying of paraquat will not have a significant effect on the quality of the human environment.
The defendants' arguments are two-fold. First, they argue that the planned spraying program is a state, rather than federal, action. As a result, the FDLE contends that (a) the Eleventh Amendment serves as a bar to this suit, (b) subject matter jurisdiction is lacking, (c) venue is lacking in the District of Columbia. All defendants further contend that because there is minimal federal involvement, the requirements of the NEPA do not apply here. Second, the defendants argue that even if this Court has jurisdiction and venue over the defendants and even if a cause of action is stated under the NEPA, the defendants have fully complied with the requirements of the NEPA.
The defendants' Eleventh Amendment, jurisdictional and venue arguments need not long detain us. It is well established that the Eleventh Amendment does not bar a suit which seeks prospective equitable, rather than retrospective monetary, relief. Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
The FDLE's jurisdictional claim is that because it is a state agency, subject matter jurisdiction is lacking. The argument is frivolous. Even if NORML's complaint does not state a ground for relief under the NEPA, dismissal would properly be on the merits, not for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946). Only if a federal claim is wholly "insubstantial" and clearly "immaterial" may a suit be dismissed for want of jurisdiction. Id. That is not the case here.
Finally, the FDLE asserts that venue under 28 U.S.C. § 1392(b) is improper in the District of Columbia because the cause of action did not arise here. However, if NORML is correct in asserting that the federal and state governments jointly planned the paraquat spraying in Florida, then the DEA's decision not to prepare an EIS arose within the District of Columbia, the location of the DEA headquarters. Venue, therefore, is appropriate in this district.
A far more troublesome question is whether the federal involvement in the challenged program is sufficient to trigger the NEPA requirements. The NEPA requires federal agencies to provide a detailed EIS on "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2) (C). Thus, only "federal" actions are subject to the NEPA. The defendants assert that the paraquat spraying program is being planned and will be conducted by the state, not the federal, government, and the NEPA therefore does not apply to this project.
Our Court of Appeals has provided guidelines in the determination of what constitutes "federal" action under the NEPA. In Defenders of Wildlife v. Andrus, 201 U.S. App. D.C. 252, 627 F.2d 1238 (D.C.Cir.1980), the court stated that mere "federal approval" of another party's action does not make the action "federal" unless the federal government undertakes some "overt act" in furtherance of the action. Id. at 1244. Thus, the requirements of the NEPA are triggered when, for example, "a federal agency approves a lease of land to private parties, grants licenses and permits to private parties, or approves and funds state highway projects." Id. at 1245, quoting Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S. App. D.C. 395, 481 F.2d 1079, 1088-89 (D.C.Cir.1973). The court in Defenders of Wildlife, quoting from the environmental law treatise written by Professor Rodgers, also set forth a requirement of federal "influence or control":
The distinguishing feature of "federal" involvement is the ability to influence or control the outcome in material respects. The EIS process is supposed to inform the decisionmaker. This presupposes he has judgment to exercise. Cases finding "federal" action emphasize authority to exercise discretion over the outcome. 627 F.2d at 1245, quoting W. Rodgers, Environmental Law 763 (1977).