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NATURAL RESOURCES DEFENSE COUNCIL v. LUJAN

August 5, 1992

NATURAL RESOURCES DEFENSE COUNCIL, INC. et al., Plaintiffs,
v.
MANUEL LUJAN, Jr., et al., Defendants.


BRYANT


The opinion of the court was delivered by: WILLIAM B. BRYANT

The question before this court is whether or not plaintiffs are entitled under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1988) ("EAJA"), to attorneys' fees and expenses incurred in litigating counts one and two of their eleven-count Complaint of September 28, 1982 ("Complaint").

 Background

 On July 30, 1982, the Department of the Interior promulgated regulations, effective August 30, 1982, amending aspects of the 1979 Federal Coal Management Program: in particular the regulations governing coal management and leasing, 47 FR 33,114 (1982) (codified at 43 C.F.R. § 3400), and those concerning coal exploration and mining operations, 47 FR 33,154 (1982) (codified at 30 C.F.R. § 211).

 Among the notable changes to the 1979 Program, the new regulations eased the requirements for "diligent development" of federally leased coal lands, reducing the "commercial quantities" of coal that must be mined each year from 2.5% to 1% of estimated total deposits. 47 FR 33,157 (1982). The earlier regulations nominally sought a balance between the quantity of federal coal leased and projected demand for production. *fn2" The new regulations openly aimed to "permit enough leasing to approximate the demand for federal coal reserves." 47 FR 33,115 (1982) (emphasis added). Taken as a whole, the 1982 regulations seemed to express a new policy that considered it desirable to shift control of a portion of federal coal reserves from the public to private industry.

 Plaintiffs feared the 1982 changes would permit mining on lands previously considered too delicate. The new regulations did not explicitly require that, where reclamation pursuant to the requirements of the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201 et. seq. (1988) ("SMCRA") proved technologically or economically unfeasible, such areas be designated as "unsuitable" for leasing. 30 U.S.C. § 1272(a)(2); Complaint at 31. The new regulations reduced public opportunity to comment on the application of the unsuitability criteria. Complaint at 34. The new regulations also appeared to exempt existing leases and lands subject to preference right lease applications from unsuitability review entirely. Complaint at 33. Plaintiffs anticipated that these and other changes would lead to "excessive leasing . . . and the mining, transportation and use of that coal will cause significant socio-economic, cultural, and environmental impacts to the land containing federal coal deposits and to surrounding areas." Complaint at 10. Plaintiffs filed their Complaint seeking, among other relief, to enjoin implementation of the 1982 regulations.

 The Claims At Issue

 Under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1988) ("NEPA"), federal agencies must include an Environmental Impact Statement ("EIS") in every recommendation or report on "proposals for legislation or other major Federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332 (2)(C). Regulations issued under NEPA by the Council on Environmental Quality ("CEQ") indicate "adoption of official policy, such as rules, regulations, and interpretations" may qualify as "major Federal action." 40 C.F.R. § 1508.18(b)(1) (1987).

 CEQ regulations require an agency contemplating "major Federal action" to either prepare an EIS or to make a finding that the action will have "no significant impact" on the human environment. 40 C.F.R. § 1501.4(e). To provide a basis for that choice, the agency must prepare an Environmental Assessment ("EA") "that serves to . . . briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a).

 In addition, CEQ regulations require an agency to prepare a supplemental EIS if "the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or . . . there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1).

 Count two alleged that the Department issued an inadequate EA that could not lawfully serve as the basis for a determination that no EIS was required. "Had defendants prepared an adequate EA, it would have revealed that the proposed changes would result in significant adverse impacts to the quality of the human environment." Id. at 27.

 Defendants claimed that the 1982 changes in the coal leasing program were modest, insufficient to trigger the mandatory requirements of NEPA and the CEQ regulations. *fn3" Defendants argued that a pre-existing, 1979 EIS "more than adequately addresses the 1982 amendments and no significant new information became available requiring supplementation of the [1979] EIS." Defendants' Memorandum in Support of Their Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, at 23 (Aug. 26, 1983).

 However, on September 4, 1984 the Department of the Interior gave notice of its intention to prepare a Supplemental EIS for the 1979 EIS, coincident with a general review of the Federal Coal Management Program. 49 FR 34,976 (1984). In October 1985 the Department issued a Final Supplemental EIS. The Department also made a series of decisions regarding the Coal Management Program which were embodied in a Secretarial Issue Document ("SID"). The parties to the present suit agreed that the preparation of the Final Supplemental EIS and the SID, as well as other actions and decisions of the Department of the Interior, "substantially satisfy Plaintiffs' claims in Counts I ('Failure to Prepare an Environmental Impact ...


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