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FOUNDATION v. BOWEN

October 4, 1989

FOUNDATION ON ECONOMIC TRENDS, et al., Plaintiffs,
v.
OTIS R. BOWEN, in his official capacity as Secretary of Health and Human Services, et al., Defendants


Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The plaintiffs have sued the chiefs of various federal government entities to enjoin the National Institute of Health (NIH) from supporting any research involving various aspects of genetic, AIDS, and cancer research until NIH completes an Environmental Impact Statement (EIS) on the research, pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. Oral argument was heard on February 28, 1989. In this Opinion and Order, the Court grants the defendants' motion for summary judgment.

 I. The Current Legal Standards

 NEPA requires the federal government to create a "detailed" statement on all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Such a statement must discuss:

 
(i) the environmental impact of the proposed action,
 
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
 
(iii) alternatives to the proposed action,
 
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhacement of long-term productivity, and
 
(v) any irreversible and irretrievable commitments of resources which would be involved in the propose action should it be implemented.

 Id. Such statements are to be made available to the public, id., and are designed to inform the governmental policy-makers and the public about the environmental effects of action undertaken with governmental support. See 40 C.F.R. § 1502.1 (Council on Environmental Quality regulations); Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1300 (8th Cir. 1976).

 Once an agency has completed an EIS on a major federal action, the agency must supplement the EIS if (1) the agency makes substantial changes to the action that changes the environmental impact, or (2) there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.09(c)(1) (regulations of the Council on Environmental Quality); Friends of the River v. FERC, 231 U.S. App. D.C. 329, 720 F.2d 93, 109 (D.C. Cir. 1983) (approving the supplementation standard); Environmental Defense Fund v. Marsh, 651 F.2d 983, 986 (5th Cir. 1981).

 There is no hard-and-fast rule regarding when there are significant enough new circumstances to require a new EIS. It is clear to the Court, however, that an agency should not have to generate an EIS every time a researcher develops a new project -- such a requirement would be oppressively burdensome and would effectively prevent a tremendous amount of research from going forward. Rather, a supplementary EIS should be required when new developments have so increased the effects and risks to the environment that the old EIS does not properly address them. It is safe to say, then, that a supplementary EIS should not be required when there are new developments in a field of research that scientists believe either have less effect than preceding research or that reveal that the field of research is likely to have less effect on the environment than originally estimated.

 The NIH in 1976 published detailed Guidelines on NIH-sponsored rDNA research. The Guidelines set standards for safety and environmental protection in rDNA research, including physical containment of particular experiments, and discouraged certain experiments. They also established groups to review ...


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