EIS under the relevant CEQ regulations. First, plaintiffs alleged that the changes were "substantial and bear directly on the location and amount of coal lands that are likely to be leased." Complaint at 25. Second, plaintiffs alleged that "there have been significant new circumstances and information relevant to environmental concerns and bearing on the federal coal leasing program and the new regulations since the EIS on the 1979 coal leasing program." Id. at 25. Some of this new information is allegedly included in a 1981 report by the Office of Technology Assessment ("OTA") entitled An Assessment of Development and Production Potential of Federal Coal Leases. Id.
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.
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  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 Statement'), [and] II ('Failure to Prepare Adequate Environmental Assessment') . . . ." Joint Motion of Plaintiffs and Federal Defendants at 2 (April 22, 1986) ("Joint Motion").
This court granted the Joint Motion, issuing an Order which among other dispositions dismissed counts one and two of the original Complaint as moot. Subsequently plaintiffs filed an application for an award of attorneys' fees and expenses under the Equal Access to Justice Act for work done on those two counts.
The Equal Access to Justice Act
The Equal Access to Justice Act mandates that fees and other expenses shall be paid to a prevailing party in "proceedings for judicial review of agency action . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust . . . ." 28 U.S.C. 2412(d)(1)(A) (1988).
The government claims that the Secretary of the Interior's position both prior to and during litigation of the NEPA issues was "substantially justified."
Under the EAJA as currently interpreted, the untenable is not necessarily unreasonable. More precisely, "a position can be justified even though it is not correct." Pierce v. Underwood, 487 U.S. 552, 566, 101 L. Ed. 2d 490, 108 S. Ct. 2541 n.2 (1988). The government's position will be considered substantially justified "if a reasonable person could think it correct." Id. The Court rejected a less lenient test, "slightly more" than mere reasonableness, Spencer v. N.L.R.B., 229 U.S. App. D.C. 225, 712 F.2d 539, 558 (D.C. Cir. 1983) cert. denied 466 U.S. 936 (1984) as "unadministerable." Pierce at 568. The government must pay fees only if it has "no reasonable basis in law and fact for taking the position it took." Public Citizen Health Research Group v. Young, 285 U.S. App. D.C. 307, 909 F.2d 546, 552 (D.C. Cir. 1990). This determination of what a reasonable person might think correct is a mixed question of law and fact, to be made on the existing record of the agency and the litigation. Pierce at 559-60. This court is satisfied that the government has met its burden in establishing that its position was "substantially justified."
NEPA operates under a tier system, which in the context of the Coal Management Program requires additional regional Environmental Impact Statements before individual coal lease sales can take place. Consequently, a reasonable person could believe that promulgating the 1982 changes in the Coal Management program regulations, absent the lease sales they potentially facilitate, does not itself add up to "major federal action." The requirement that an EIS be filed prior to a lease sale suggests that it is the sale, and not the planning for the sale, which is the federal action at issue. The government's argument that the scope of the 1982 changes to the Coal Management Program were not so broad as to cause substantial environmental impacts beyond those anticipated by the 1979 EIS, while less convincing, cannot be considered unjustified. Similarly, as to whether or not information in the 1981 OTA report rises to the level of "significant new . . . information" necessary to trigger the CEQ regulations, the assertion that it does not cannot be considered unjustified. And if no new EIS is required, the inadequacies of the EA do not necessarily rise to the level of illegality. Thus it appears to the court that the government's position is "substantially justified." Consequently, the application for fees is DENIED.
WILLIAM B. BRYANT
Senior United States District Judge
Date: August 5, 1992