427 U.S.

390
96 S.Ct. 2718
49 L.Ed.2d 576

Thomas S. KLEPPE, Secretary of the Interior, et al.,

Petitioners,
v.
SIERRA CLUB et al. AMERICAN ELECTRIC POWER
SYSTEM et al., Petitioners, v. SIERRA CLUB et al.
Nos. 75-552 and 75-561.
Argued April 28, 1976.
Decided June 28, 1976.

Syllabus
Section 102(2)(C) of the National Environmental Policy Act of 1969
(NEPA) requires that all federal agencies include an environmental impact
statement (EIS) "in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment." Respondent environmental
organizations, alleging a widespread interest in the rich coal reserves of
the "Northern Great Plains region" (embracing parts of Wyoming,
Montana, North Dakota, and South Dakota) and a threat from coal-related
operations to their members' enjoyment of the region's environment,
brought suit against petitioner officials of the Department of the Interior
and other federal agencies responsible for issuing coal leases, approving
mining plans, and taking other actions to enable private companies and
public utilities to develop coal reserves on federally owned or controlled
land. Respondents claimed that petitioners could not allow further
development of coal reserves in the region without preparing a
comprehensive EIS under 102(2)(C) on the entire region, and sought
declaratory and injunctive relief. The District Court, on the basis of
extensive findings of fact and conclusions of law, held that the complaint
stated no claim for relief, and granted petitioners' motion for summary
judgment. While accepting the District Court's findings of fact, the Court
of Appeals held, on the basis of the soon-forthcoming interim report of the
Northern Great Plains Resources Program (NGPRP) (a study of the
potential environmental impact from resource development in Montana,

Wyoming, North Dakota, South Dakota, and Nebraska) as well as other

such studies of areas either inclusive of or included within the Northern
Great Plains region, that petitioners "contemplated" a regional plan or
program, and reversed and remanded with instructions to petitioners to
inform the District Court of their role in the further development of the
region within 30 days after the NGPRP interim report issued, and that if
they decided to control that development, an EIS would be required. The
Court of Appeals also enjoined the Department of the Interior's approval
of mining plans in one section of the region for which an EIS already had
been prepared.Held :
1. The NEPA does not require petitioners to prepare an EIS on the entire
Northern Great Plains region. Petitioners have proposed no legislation on
the region, and there is no evidence in the record of any proposal for
major federal action with respect to the region, but rather it appears that all
proposals have been for actions of either local or national scope. Unless
there is a proposal for a regional plan of development, it is not practical to
prepare a regional EIS, since, absent such a plan, it is impossible to predict
the level of coal-related activity that will occur in the region, and thus to
analyze the environmental consequences and the resource commitments
involved, and alternatives to, such activity. Pp. 398-402.
2. The Court of Appeals erred in both its factual assumptions that the
several studies undertaken by petitioners represented attempts to control
development on a regional scale, and in its interpretation of the NEPA.
There is nothing in the record to indicate that the NGPRP was aimed
toward a regional plan or program, but even if the record justified such a
finding the Court of Appeals' legal conclusion cannot be squared with the
NEPA, which in 102(2)(C) clearly states that an EIS is not required until
an agency makes a recommendation or report on a Proposal for major
federal action. The Court of Appeals had no authority to depart from the
statutory language and, by a balancing of court-devised factors, determine
a point at which an EIS Should be prepared. Pp. 403-406.
3. Assuming that the Court of Appeals' theory about "contemplation" of
regional action would permit a court to require preproposal preparation of
an EIS, that court's injunction against approval of the mining plans in one
part of the region nevertheless would have been error, since on the court's
own terms there was in fact no harm and thus no ground for the
injunction. Pp. 407-408.
4. Respondents' contention as to the relationships of all proposed coalrelated projects in the Northern Great Plains region does not require that

petitioners prepare one comprehensive EIS covering such projects before

proceeding to approve specific pending applications. Absent a showing
that petitioners acted arbitrarily in refusing to prepare one comprehensive
EIS on the entire region, it must be assumed that the responsible federal
agencies have exercised appropriately their discretion to resolve the
technical issues involved in determining the region, if any, with respect to
which a comprehensive EIS covering several proposals is necessary. Pp.
408-414.
169 U.S.App.D.C. 20, 514 F.2d 856, reversed and remanded.
A. Raymond Randolph, Jr., Washington, D. C., for petitioners Thomas S.
Kleppe, Secretary of the Interior, and others.
V. Frank Mendicino, Cheyenne, Wyo., for the State of Wyoming, as
amicus curiae, by special leave of Court.
Bruce J. Terris, Washington, D. C., for respondents Sierra Club and
others.
Francis M. Shea, Washington, D. C., for petitioners in both cases.
[Argument of Counsel from pages 392-393 intentionally omitted]
Mr. Justice POWELL delivered the opinion of the Court.

Section 102(2)(C) of the National Environmental Policy Act of 19691 (NEPA)

requires that all federal agencies include a detailed statement of environmental
consequences known as an environmental impact statement "in every
recommendation or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment." 42
U.S.C. 4332(2)(C). The United States Court of Appeals for the District of
Columbia Circuit held that officials of the Department of the Interior
(Department) and certain other federal agencies must take additional steps
under this section, beyond those already taken, before allowing further
development of federal coal reserves in a specific area of the country. For the
reasons set forth, we reverse.

* Respondents, several organizations concerned with the environment, brought

this suit in July 1973 in the United States District Court for the District of
Columbia.2 The defendants in the suit, petitioners here, were the officials of the
Department and other federal agencies responsible for issuing coal leases,

approving mining plans, granting rights-of-way, and taking the other actions
necessary to enable private companies and public utilities to develop coal
reserves on land owned or controlled by the Federal Government. Citing
widespread interest in the reserves of a region identified as the "Northern Great
Plains region," and an alleged threat from coal-related operations to their
members' enjoyment of the region's environment, respondents claimed that the
federal officials could not allow further development without preparing a
"comprehensive environmental impact statement" under 102(2)(C) on the
entire region. They sought declaratory and injunctive relief.
3

The District Court, on the basis of extensive findings of fact and conclusions of
law, held that the complaint stated no claim for relief and granted the
petitioners' motions for summary judgment.3 Respondents appealed. Shortly
after oral argument but before issuing an opinion on the merits, the Court of
Appeals in January 1975 issued an injunction over a dissent against the
Department's approval of four mining plans in the Powder River Coal Basin,
which is one small but coal-rich section of the region that concerns
respondents. 166 U.S.App.D.C. 200, 509 F.2d 533. An impact statement had
been prepared on these plans, but it had not been before the District Court and
was not before the Court of Appeals. In June 1975 the Court of Appeals ruled
on the merits and, for reasons discussed below, reversed the District Court and
remanded for further proceedings. 169 U.S.App.D.C. 20, 514 F.2d 856. The
court continued its injunction in force.

The federal officials petitioned for writ of certiorari on October 9, 1975. On

November 7, the Court of Appeals refused to dissolve its injunction,4 and a
week later petitioners moved this Court for a stay. On January 12, 1976, we
stayed the injunction and granted the petitions for certiorari. 423 U.S. 1047, 96
S.Ct. 772, 46 L.Ed.2d 635. We have been informed that shortly thereafter the
Secretary of the Interior (Secretary) approved the four mining plans in the
Powder River Coal Basin that had been stayed by the injunction.

II
5

The record and the opinions of the courts below contain extensive facts about
coal development and the geographic area involved in this suit. The facts that
we consider essential, however, can be stated briefly.

The Northern Great Plains region identified in respondents' complaint

encompasses portions of four States northeastern Wyoming, eastern Montana,
western North Dakota, and western South Dakota. There is no dispute about its
richness in coal, nor about the waxing interest in developing that coal, nor

about the crucial role the federal petitioners will play due to the significant
percentage of the coal to which they control access. The Department has
initiated, in this decade, three studies in areas either inclusive of or included
within this region. The North Central Power Study was addressed to the
potential for coordinated development of electric power in an area
encompassing all or part of 15 States in the North Central United States. It
aborted in 1972 for lack of interest on the part of electric utilities. The
Montana-Wyoming Aqueducts Study, intended to recommend the best use of
water resources for coal development in southeastern Montana and northeastern
Wyoming, was suspended in 1972 with the initiation of the third study, the
Northern Great Plains Resources Program (NGPRP
7

While the record does not reveal the degree of concern with environmental
matters in the first two studies, it is clear that the NGPRP was devoted entirely
to the environment. It was carried out by an interagency, federal-state task force
with public participation, and was designed "to assess the potential social,
economic and environmental impacts" from resource development in five States
Montana, Wyoming, South Dakota, North Dakota, and Nebraska.5 Its primary
objective was "to provide an analytical and informational framework for policy
and planning decisions at all levels of government"6 by formulating several
"scenarios" showing the probable consequences for the area's environment and
culture from the various possible techniques and levels of resource
development. The final interim report of the NGPRP was issued August 1,
1975, shortly after the decision of the Court of Appeals in this case.

In addition, since 1973 the Department has engaged in a complete review of its
coal-leasing program for the entire Nation. On February 17 of that year the
Secretary announced the review and announced also that during study a "shortterm leasing policy" would prevail, under which new leasing would be
restricted to narrowly defined circumstances and even then allowed only when
an environmental impact statement had been prepared if required under NEPA.7
The purpose of the program review was to study the environmental impact of
the Department's entire range of coal-related activities and to develop a
planning system to guide the national leasing program. The impact statement,
known as the "Coal Programmatic EIS," went through several drafts before
issuing in final form on September 19, 1975 shortly before the petitions for
certiorari were filed in this case. The Coal Programmatic EIS proposed a new
leasing program based on a complex planning system called the Energy
Minerals Activity Recommendation System (EMARS), and assessed the
prospective environmental impact of the new program as well as the
alternatives to it. We have been informed by the parties to this litigation that the
Secretary is in the process of implementing the new program.8

Against this factual background, we turn now to consider the issues raised by
this case in the status in which it reached this Court.

III
10

The major issue remains the one with which the suit began: whether NEPA
requires petitioners to prepare an environmental impact statement on the entire
Northern Great Plains region.9 Petitioners, arguing the negative, rely squarely
upon the facts of the case and the language of 102(2)(C) of NEPA. We find
their reliance well placed.

11

As noted in the first sentence of this opinion, 102(2)(C) requires an impact

statement "in every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of the human
environment." Since no one has suggested that petitioners have proposed
legislation on respondents' region, the controlling phrase in this section of the
Act, for this case, is "major Federal actions." Respondents can prevail only is
there has been a report or recommendation on a proposal for major federal
action with respect to the Northern Great Plains region. Our statement of the
relevant facts shows there has been none; instead, all proposals are for actions
of either local or national scope.

12

The local actions are the decisions by the various petitioners to issue a lease,
approve a mining plan, issue a right-of-way permit, or take other action to
allow private activity at some point within the region identified by respondents.
Several Courts of Appeals have held that an impact statement must be included
in the report or recommendation on a proposal for such action if the private
activity to be permitted is one "significantly affecting the quality of the human
environment" within the meaning of 102(2)(C). See, E. g., Scientists' Institute
for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 404-405, 481 F.2d
1079, 1088-1089 (1973); Davis v. Morton, 469 F.2d 593 (CA10 1972). The
petitioners do not dispute this requirement in this case, and indeed have
prepared impact statements on several proposed actions of this type in the
Northern Great Plains during the course of this litigation.10 Similarly, the
federal petitioners agreed at oral argument that 102(2)(C) required the Coal
Programmatic EIS that was prepared in tandem with the new national coalleasing program and included as part of the final report on the proposal for
adoption of that program. Tr. of Oral Arg. 9. Their admission is well made, for
the new leasing program is a coherent plan of national scope, and its adoption
surely has significant environmental consequences.

13

But there is no evidence in the record of an action or a proposal for an action of

regional scope. The District Court, in fact, expressly found that there was no
existing or proposed plan or program on the part of the Federal Government for
the regional development of the area described in respondents' complaint. It
found also that the three studies initiated by the Department in areas either
included within or inclusive of respondents' region that is, the MontanaWyoming Aqueducts Study, the North Central Power Study, and the NGPRP
were not parts of any plan or program to develop or encourage development of
the Northern Great Plains. That court found no evidence that the individual
coal development projects undertaken or proposed by private industry and
public utilities in that part of the country are integrated into a plan or otherwise
interrelated. These findings were not disturbed by the Court of Appeals, and
they remain fully supported by the record in this Court. 11
14

Quite apart from the fact that the statutory language requires an impact
statement only in the event of a proposed action,12 respondents' desire for a
regional environmental impact statement cannot be met for practical reasons. In
the absence of a proposal for a regional plan of development, there is nothing
that could be the subject of the analysis envisioned by the statute for an impact
statement. Section 102(2)(C) requires that an impact statement contain, in
essence a detailed statement of the expected adverse environmental
consequences of an action, the resource commitments involved in it, and the
alternatives to it.13 Absent an overall plan for regional development, it is
impossible to predict the level of coal-related activity that will occur in the
region identified by respondents, and thus impossible to analyze the
environmental consequences and the resource commitments involved in, and
the alternatives to, such activity. A regional plan would define fairly precisely
the scope and limits of the proposed development of the region. Where no such
plan exists, any attempt to produce an impact statement would be little more
than a study along the lines of the NGPRP, containing estimates of potential
development and attendant environmental consequences. There would be no
factual predicate for the production of an environmental impact statement of the
type envisioned by NEPA.14

IV
A.
15

The Court of Appeals, in reversing the District Court, did not find that there
was a regional plan or program for development of the Northern Great Plains
region. It accepted all of the District Court's findings of fact, but concluded
nevertheless that the petitioners "contemplated" a regional plan or program. The
court thought that the North Central Power Study, the Montana-Wyoming

Aqueducts Study, and the NGPRP all constituted "attempts to control

development" by individual companies on a regional scale. It also concluded
that the interim report of the NGPRP, then expected to be released at any time,
would provide the petitioners with the information needed to formulate the
regional plan they had been "contemplating." The Court therefore remanded
with instructions to the petitioners to inform the District Court of their role in
the further development of the region within 30 days after the NGPRP interim
report issued; if they decided to control that development, an impact statement
would be required.
16

We conclude that the Court of Appeals erred in both its factual assumptions and
its interpretation of NEPA. We think the court was mistaken in concluding, on
the record before it, that the petitioners were "contemplating" a regional
development plan or program. It considered the several studies undertaken by
the petitioners to represent attempts to control development on a regional scale.
This conclusion was based on a finding by the District Court that those studies,
as well as the new national coal-leasing policy, were "attempts to control
development by individual companies in a manner consistent with the policies
and procedures of the National Environmental Policy Act of 1969." But in
context, that finding meant only that the named studies were efforts to gain
background environmental information for subsequent application in the
decisionmaking with respect to individual coal-related projects. This is the
sense in which the District Court spoke of controlling development consistently
with NEPA. Indeed, in the same paragraph containing the language relied upon
by the Court of Appeals, the District Court expressly found that the studies
were not part of a plan or program to develop or encourage development. See
supra, at 400-401.

17

Moreover, at the time the Court of Appeals ruled there was no indication in the
record that the NGPRP was aimed toward a regional plan or program, and
subsequent events have shown that this was not its purpose. The interim report
of the study, issued shortly after the Court of Appeals ruled, described the
effects of several possible rates of coal development but stated in its preface
that the alternatives "are for study and comparison only; they do not represent
specific plans or proposals." All parties agreed in this Court that there still
exists no proposal for a regional plan or program of development. See Tr. of
Oral Arg. 48.

18

Even had the record justified a finding that a regional program was
contemplated by the petitioners, the legal conclusion drawn by the Court of
Appeals cannot be squared with the Act. The court recognized that the mere
"contemplation" of certain action is not sufficient to require an impact

statement. But it believed the statute nevertheless empowers a court to require

the preparation of an impact statement to begin at some point prior to the
formal recommendation or report on a proposal. The Court of Appeals
accordingly devised its own four-part "balancing" test for determining when
during the contemplation of a plan or other type of federal action, an agency
must begin a statement. The factors to be considered were identified as the
likelihood and imminence of the program's coming to fruition, the extent to
which information is available on the effects of implementing the expected
program and on alternatives thereto, the extent to which irretrievable
commitments are being made and options precluded "as refinement of the
proposal progresses," and the severity of the environmental effects should the
action be implemented.
19

The Court of Appeals thought that as to two of these factors the availability of
information on the effects of any regional development program, and the
severity of those effects the time already was "ripe" for an impact statement. It
deemed the record unclear, however, as to the likelihood of the petitioners'
actually producing a plan to control the development, and surmised that
irretrievable commitments were being avoided because petitioners had ceased
approving most coal-related projects while the NGPRP study was underway.
The court also thought that the imminent release of the NGPRP interim report
would provide the officials with sufficient information to define their role in
development of the region, and it believed that as soon as the NGPRP was
completed the petitioners would begin approving individual projects in the
region, thus permitting irrevocable commitments of resources. It was for this
reason that the court in its remand required the petitioners to report to the
District Court their decision on the federal role with respect to the Northern
Great Plains as a region within 30 days after issuance of the NGPRP report.

20

The Court's reasoning and action find no support in the language or legislative
history of NEPA. The statute clearly states when an impact statement is
required, and mentions nothing about a balancing of factors. Rather, as we
noted last Term, under the first sentence of 102(2)(C) the moment at which
an agency must have a final statement ready "is the time at which it makes a
recommendation or report on a proposal for federal action." Aberdeen &
Rockfish R. C. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2356,5 L.Ed.2d
191 (1975) (SCRAP II ) (emphasis in original). The procedural duty imposed
upon agencies by this section is quite precise, and the role of the courts in
enforcing that duty is similarly precise. A court has no authority to depart from
the statutory language and, by a balancing of court-devised factors, determine a
point during the germination process of a potential proposal at which an impact
statement Should be prepared. Such an assertion of judicial authority would

leave the agencies uncertain as to their procedural duties under NEPA, would
invite judicial involvement in the day-to-day decisionmaking process of the
agencies, and would invite litigation. As the contemplation of a project and the
accompanying study thereof do not necessarily result in a proposal for major
federal action, it may be assumed that the balancing process devised by the
Court of Appeals also would result in the preparation of a good many
unnecessary impact statements.15
B
21

Assuming that the Court of Appeals' theory about "contemplation" of regional

action would permit a court to require preproposal preparation of an impact
statement, the court's injunction against the Secretary's approval of the four
mining plans in the Powder River Basin nevertheless would have been error.
The District Court had found that respondents would not have been entitled to
an injunction against any individual projects even if their claim of the need for
a regional impact statement had been valid, because they had shown no
irreparable harm that would result absent such an injunction and the record
disclosed that irreparable harm Would result to the intervenors who sought to
carry out their business ventures and to the public who depended upon their
operations. The Court of Appeals made no finding as to the equities at the time
it originally entered the injunction; when it continued the injunction following
its decision on the merits, it stated only that the "harm" justifying an injunction
"matured" whenever an impact statement is due and not filed. But on the Court
of Appeals' own terms there was in fact no harm. First, the Court of Appeals
itself held that no regional impact statement was due at that moment, and it was
uncertain whether one ever would be due. Second, there had been filed a
comprehensive impact statement on the proposed Powder River Basin mining
plans themselves, and its adequacy had not been challenged either before the
District Court or the Court of Appeals in this case, or anywhere else.16 Thus, in
simple equitable terms there were no grounds for the injunction: the
Districtourt's finding of irreparable injury to the intervenors and to the public
still stood, and there were on the Court of Appeals' own terms no
countervailing equities.

V
22

Our discussion thus far has been addressed primarily to the decision of the
Court of Appeals. It remains, however, to consider the contention now urged by
respondents. They have not attempted to support the Court of Appeals' decision.
Instead, respondents renew an argument they appear to have made to the Court
of Appeals, but which that court did not reach. Respondents insist that, even

without a comprehensive federal plan for the development of the Northern

Great Plains, a "regional" impact statement nevertheless is required on all coalrelated projects in the region because they are intimately related.
23

There are two ways to view this contention. First, it amounts to an attack on the
sufficiency of the impact statements already prepared by the petitioners on the
coal-related projects that they have approved or stand ready to approve. As
such, we cannot consider it in this proceeding, for the case was not brought as a
challenge to a particular impact statement and there is no impact statement in
the record.17 It also is possible to view the respondents' argument as an
attacupon the decision of the petitioners not to prepare one comprehensive
impact statement on all proposed projects in the region. This contention
properly is before us, for the petitioners have made it clear they do not intend to
prepare such a statement.

24

We begin by stating our general agreement with respondents' basic premise that
102(2)(C) may require a comprehensive impact statement in certain situations
where several proposed actions are pending at the same time. NEPA announced
a national policy of environmental protection and placed a responsibility upon
the Federal Government to further specific environmental goals by "all
practicable means, consistent with other essential considerations of national
policy." 101(b), 42 U.S.C. 4331(b). Section 102(2)(C) is one of the "actionforcing" provisions intended as a directive to "all agencies to assure
consideration of the environmental impact of their actions in decisionmaking."
Conference Report on NEPA, 115 Cong.Rec. 40416 (1969).18 By requiring on
impact statement Congress intended to assure such consideration during the
development of a proposal or as in this case during the formulation of a
position on a proposal submitted by private parties.19 A comprehensive impact
statement may be necessary in some cases for an agency to meet this duty.
Thus, when several proposals for coal-related actions that will have cumulative
or synergistic environmental impact upon a region are pending concurrently
before an agency, their environmental consequences must be considered
together.20 Only through comprehensive consideration of pending proposals can
the agency evaluate different courses of action.21

25

Agreement to this extent with respondents' premise, however, does not require
acceptance of their conclusion that all proposed coal-related actions in the
Northern Great Plains region are so "related" as to require their analysis in a
single comprehensive impact statement. Respondents informed us that the
Secretary recently adopted an approach to impact statements on coal-related
actions that provides:

26

"A. As a general proposition, and as determined by the Secretary, when action

is proposed involving coal development such as issuing several coal leases or
approving mining plans in the same region, such actions will be covered by a
single EIS rather than by multiple statements. In such cases, the region covered
will be determined by basin boundaries, drainage areas, areas of common
reclamation problems, administrative boundaries, areas of economic
interdependence, and other relevant factors." Brief for Respondents 20a.

27

At another point, the document containing the Secretary's approach 22 states that
a "regional EIS" will be prepared "if a series of proposed actions with
interrelated impacts are involved . . . unless a previous EIS has sufficiently
analyzed the impacts of the proposed action(s)." Id., at 20a-21a. Thus, the
Department has decided to prepare comprehensive impact statements of the
type contemplated by 102(2)(C), although it has not deemed it appropriate to
prepare such a statement on all proposed actions in the region identified by
respondents.

28

Respondents conceded at oral argument that to prevail they must show that
petitioners have acted arbitrarily in refusing to prepare one comprehensive
statement on this entire region, and we agree. Tr. of Oral Arg. 67. The
determination of the region, if any, with respect to which a comprehensive
statement is necessary requires the weighing of a number of relevant factors,
including the extent of the interrelationship among proposed actions and
practical considerations of feasibility. Resolving these issues requires a high
level of technical expertise and is properly left to the informed discretion of the
responsible federal agencies. Cf. SCRAP II, 422 U.S., at 325-326, 95 S.Ct., at
2358-2359. Absent a showing of arbitrary action, we must assume that the
agencies have exercised this discretion appropriately. Respondents have made
no showing to the contrary.

29

Respondents' basic argument is that one comprehensive statement on the

Northern Great Plains is required because all coal-related activity in that region
is "programmatically," "geographically," and "environmentally" related. Both
the alleged "programmatic" relationship and the alleged "geographic"
relationship resolve, ultimately, into an argument that the region is proper for a
comprehensive impact statement because the petitioners themselves have
approached environmental study in this area on a regional basis.23 Respondents
point primarily to the NGPRP, which they claim and petitioners deny focused
on the region described in the complaint.24 The precise reon of the NGPRP is
unimportant, for its irrelevance to the delineation of an appropriate area for
analysis in a comprehensive impact statement has been well stated by the

Secretary:
30

"Resource studies (like the NGPRP) are one of many analytical tools employed
by the Department to inform itself as to general resource availability, resource
need and general environmental considerations so that it can intelligently
determine the scope of environmental analysis and review specific actions it
may take. Simply put, resource studies are a prelude to informed agency
planning, and provide the data base on which the Department may decide to
take specific actions for which impact statements are prepared. The scope of
environmental impact statements seldom coincide with that of a given resource
study, since the statements evolve from specific proposals for federal action
while the studies simply provide an educational backdrop." Affidavit of Oct.
28, 1975, App. 191.

31

As for the alleged "environmental" relationship, respondents contend that the

coal-related projects "will produce a wide variety of cumulative environmental
impacts" throughout the Northern Great Plains region. They described them as
follows: Diminished availability of water, air and water pollution, increases in
population and industrial densities, and perhaps even climatic changes.
Cumulative environmental impacts are, indeed, what require a comprehensive
impact statement. But determination of the extent and effect of these factors,
and particularly identification of the geographic area within which they may
occur, is a task assigned to the special competency of the appropriate agencies.
Petitioners dispute respondents' contentions that the interrelationship of
environmental impacts is regionwide25 and, as respondents' own submissions
indicate, petitioners appear to have determined that the appropriate scope of
comprehensive statements should be bas on basins, drainage areas, and other
factors. See Supra, at 410-411. We cannot say that petitioners' choices are
arbitrary. Even if environmental interrelationships could be shown conclusively
to extend across basins and drainage areas, practical considerations of
feasibility might well necessitate restricting the scope of comprehensive
statements.

32

In sum, respondents' contention as to the relationships between all proposed

coal-related projects in the Northern Great Plains region does not require that
petitioners prepare one comprehensive impact statement covering all before
proceeding to approve specific pending applications.26 As we already have
determined that there exists no proposal for regionwide action tt could require a
regional impact statement, the judgment of the Court of Appeals must be
reversed, and the judgment of the District Court reinstated and affirmed. The
case is remanded for proceedings consistent with this opinion.

33

So ordered.

34

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,

concurring in part and dissenting in part.

35

While I agree with much of the Court's opinion, I must dissent from Part IV,
which holds that the federal courts may not remedy violations of the National
Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. 4321 Et
seq. no matter how blatant until it is too late for an adequate remedy to be
formulated. As the Court today recognizes, NEPA contemplates agency
consideration of environmental factors throughout the decisionmaking process.
Since NEPA's enactment, however, litigation has been brought primarily at the
end of that process challenging agency decisions to act made without adequate
environmental impact statements or without any statements at all. In such
situations, the courts have had to content themselves with the largely
unsatisfactory remedy of enjoining the proposed federal action and ordering the
preparation of an adequate impact statement. This remedy is insufficient
because, except by deterrence, it does nothing to further early consideration of
environmental factors. And, as with all after-the-fact remedies, a remand for
preparation of an impact statement after the basic decision to act has been made
invites post hoc rationalizations, cf. Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 419-420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), rather than
the candid and balanced environmental assessments envisioned by NEPA.
Moreover, the remedy is wasteful of resources and time, causing fully
developed plans for action to be laid aside while an impact statement is
prepared.

36

Nonetheless, until this lawsuit, such belated remedies were all the federal courts
had had the opportunity to impose under NEPA. In this case, confronted with a
situation in which, according to respondents' allegations, federal agencies were
violating NEPA prior to their basic decision to act, the Court of Appeals for the
District of Columbia Circuit seized the opportunity to devise a different and
effective remedy. It recognized a narrow class of cases essentially those where
both the likelihood of eventual agency action and the danger posed by
nonpreparation of an environmental impact statement were great in which it
would allow judicial intervention prior to the time at which an impact statement
must be ready. The Court today loses sight of the inadequacy of other remedies
and the narrowness of the category constructed by the Court of Appeals, and
construes NEPA so as to preclude a court from ever intervening prior to a
formal agency proposal. This decision, which unnecessarily limits the ability of
the federal courts to effectuate the intent of NEPA, is mandated neither by the

statute nor by the various equitable considerations upon which the Court relies.
37

* The premises of the Court of Appeals' approach are not novel and indeed are
reaffirmed by the Court today. Under 102(2)(C) of NEPA, 42 U.S.C.
4332(2) (C), "the moment at which an agency must have a final (environmtal
impact) statement ready 'is the time at which it makes a recommendation or
report on a Proposal for federal action.' " Ante, at 406, quoting Aberdeen &
Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2356, 45
L.Ed.2d 191 (1975) (first emphasis added). Preparation of an impact statement,
particularly on a complicated project, takes a considerable amount of time. Flint
Ridge Dev. Co. v. Scenic Rivers Assn., 426 U.S. 776, 789 n. 10, 96 S.Ct. 2430,
2438, 49 L.Ed.2d 205 (1976); Sixth Annual Report, Council on Environmental
Quality 639 (1975). Necessarily, if the statement is to be completed by the time
the agency makes its formal proposal to act, preparation must begin
substantially before the proposal must be ready. In this litigation, for instance,
the federal petitioners assert that a statement on the region in which respondents
are interested would take more than three years to complete. Brief for Federal
Petitioners 28 n. 22. Accordingly, since it would violate NEPA for the
Government to propose a plan for regional development of the Northern Great
Plains without an accompanying environmental impact statement, if the
Government contemplates making such a proposal at any time in the next three
years it should already be working on its impact statement.

38

But an early start on the statement is more than a procedural necessity. Early
consideration of environmental consequences through production of an
environmental impact statement is the whole point of NEPA, as the Court
recognizes. The legislative history of NEPA demonstrates that "(b)y requiring
an impact statement Congress intended to assure (environmental) consideration
During the development of a proposal . . . ." Ante, at 409, (emphasis added).
Compliance with this duty allows the decisionmaker to take environmental
factors into account when he is making decisions, at a time when he has an
open mind and is more like to be receptive to such considerations. Thus, the
final impact statement itself is but "the tip of an iceberg, the visible evidence of
an underlying planning and decisionmaking process that is usually unnoticed by
the public." Sixth Annual Report, Council on Environmental Quality 628
(1975).

39

Because an early start in preparing an impact statement is necessary if an

agency is to comply with NEPA, there comes a time when an agency that fails
to begin preparation of a statement on a contemplated project is violating the
law. It is this fact, which is not disputed by the Court today, that was
recognized by the Court of Appeals and that formed the basis of its remedy.

The Court devised a four-part test to enable a reviewing court to determine

when judicial intervention might be proper in such cases. The questions
formulated by the Court of Appeals were:
40

"How likely is the program to come to fruition, and how soon will that occur?
To what extent is meaningful information presently available on the effects of
implementation of the program, and of alternatives and their effects? To what
extent are irretrievable commitments being made and options precluded as
refinement of the proposal progresses? How severe will be the environmental
effects if the program is implemented?" 169 U.S.App.D.C. 20, 44, 514 F.2d
856, 880 (1975).

41

While the Court's disapproval of this four-part inquiry precludes any future
demonstration of its workability, the test is designed to allow judicial
intervention only in the small number of cases where the need for work to
begin on an environmental impact statement is clear and the agency violation
blatant. 1 And, indeed, the Court of Appeals refused to find a violation in this
case, concluding instead that on two of the four factors the evidence was such
as to negate the need for a prompt start on an impact statement.

II
42

I believe the Court of Appeals' test is a sensible way to approach enforcement

of NEPA, and none of the Court's reasons for concluding otherwise are, for me,
persuasive.2

43

The Court begins its rejection of the four-part test by announcing that the
procedural duty imposed on the agencies by 102(2)(C) is "quite precise" and
leaves a court "no authority to depart from the statutory language . . . ." Ante, at
406. Given the history and wording of NEPA's impact statement requirement,
this statement is baffling. A statute that imposes a complicated procedural
requirement on all "proposals" for "major Federal actions significantly affecting
the quality of the human environment" and then assiduously avoids giving any
hint, either expressly or by way of legislative history, of what is meant by a
"proposal" or by a "major Federal action" can hardly be termed precise. In fact,
this vaguely worded statute seems designed to serve as no more than a catalyst
for development of a "common law" of NEPA. To date, the courts have
responded in just that manner and have created such a "common law." 169
U.S.App.D.C., at 34-36, 514 F.2d, at 870-872. Indeed, that development is the
source of NEPA's success. Of course, the Court is correct that the courts may
not dart from NEPA's language. They must, however, give meaning to that
language if there is to be anything in NEPA to enforce at all. And that is all the

Court of Appeals did in this case.

44

But, claims the Court, judicial intervention of the sort approved by the Court of
Appeals would leave the agencies uncertain about their procedural duties under
NEPA. There is no basis for this claim. The agencies already know their duties
under NEPA and the Court of Appeals did not alter them. All it did was create a
mechanism to allow it to enforce those pre-existing duties.

45

Next, the Court fears, the four-part test, would "invite judicial involvement in
the day-to-day decisionmaking process of the agencies. . . ." Ante, at 406. This
concern is in part untrue and in part exaggerated. The test would certainly result
in judicial involvement with the single decision whether the time is right to
begin an impact statement. But this is hardly a day-to-day process, and the
involvement even in that decision would be limited to timing alone. The Court
of Appeals made clear that, so long as their decision was not arbitrary or
capricious, "definition of the proper region for comprehensive development
and, therefore, the comprehensive impact statement should be left in the hands
of the federal appellees," 169 U.S.App.D.C., at 45 n. 33, 514 F.2d, at 881 n. 33,
a position which the Court adopts today. Ante, at 412. And, most important, a
federal court would intervene at all only when theour-part test indicated an
abdication of the agency's statutory duty and the necessity for judicial
intervention.

46

The Court is also concerned that the proposed rule would invite litigation. But
the recognition of any right invites litigation, and it is a curious notion of
statutory construction that makes substantive rights depend on whether persons
would seek to enforce them in court. See United States v. Watson, 423 U.S.
411, 433, 452 n. 19, 96 S.Ct. 820, 832, 842, 46 L.Ed.2d 598 (1976) (Marshall,
J., dissenting). In any case, to the extent the litigation is the result of agency
noncompliance with NEPA, the Court can hardly complain about it. And to the
extent the litigation is frivolous, the four-part test is a stiff one and "the
plaintiff can be hastened from (the) court by summary judgment." Barlow v.
Collins, 397 U.S. 159, 175 n. 10, 90 S.Ct. 832, 842, 25 L.Ed.2d 192 (1970)
(opinion of Brennan, J.).

47

Lastly, the Court complains, since some contemplated projects might never
come to fruition, the Court of Appeals' test might result "in the preparation of a
good many unnecessary impact statements." Ante, at 406 (footnote omitted).
Even bypassing the instances in which a project is dropped as a result of
environmental considerations discovered in the course of preparing an impact
statement, the Court's concerns are exaggerated. The Court of Appeals showed
great sensitivity to the need for federal officials to be able "to dream out loud

without filing an impact statement," 169 U.S.App.D.C., at 43, 514 F.2d, at 879,
and did not seek to disturb that freedom. Indeed, a major point of the four-part
test is to avoid wasted effort including the wasted effort of enjoining an already
proposed project to allow the belated preparation of an impact statement and
the Court suggests, and I can imagine, no reason why the test is unlikely to be
successful in achieving that goal.
48

In short, the Court offers nothing but speculation, misconception, and

exaggeration to reject a reasonably designed test for enforcing the duty NEPA
imposes upon the federal agencies. Whatever difficulties the Court may have
with the initial application of the test in this case and I agree that an injunction
was not warranted on the facts before the Court of Appeals the Court has
articulated no basis for interring the test before it has been given a chance to
breathe.

49

The Court is also concerned that the proposed rule would invite litigation. But
the recognition of any right invites litigation, and it is a curious notion of
statutory construction that makes substantive rights depend on whether persons
would seek to enforce them in court. See United States v. Watson, 423 U.S.
411, 433, 452 n. 19, 96 S.Ct. 820, 832, 842, 46 L.Ed.2d 598 (1976) (Marshall,
J., dissenting). In any case, to the extent the litigation is the result of agency
noncompliance with NEPA, the Court can hardly complain about it. And to the
extent the litigation is frivolous, the four-part test is a stiff one and "the
plaintiff can be hastened from (the) court by summary judgment." Barlow v.
Collins, 397 U.S. 159, 175 n. 10, 90 S.Ct. 832, 842, 25 L.Ed.2d 192 (1970)
(opinion of Brennan, J.).

50

Lastly, the Court complains, since some contemplated projects might never
come to fruition, the Court of Appeals' test might result "in the preparation of a
good many unnecessary impact statements." Ante, at 406 (footnote omitted).
Even bypassing the instances in which a project is dropped as a result of
environmental considerations discovered in the course of preparing an impact
statement, the Court's concerns are exaggerated. The Court of Appeals showed
great sensitivity to the need for federal officials to be able "to dream out loud
without filing an impact statement," 169 U.S.App.D.C., at 43, 514 F.2d, at 879,
and did not seek to disturb that freedom. Indeed, a major point of the four-part
test is to avoid wasted effort including the wasted effort of enjoining an already
proposed project to allow the belated preparation of an impact statement and
the Court suggests, and I can imagine, no reason why the test is unlikely to be
successful in achieving that goal.

51

In short, the Court offers nothing but speculation, misconception, and

exaggeration to reject a reasonably designed test for enforcing the duty NEPA
imposes upon the federal agencies. Whatever difficulties the Court may have
with the initial application of the test in this case and I agree that an injunction
was not warranted on the facts before the Court of Appeals the Court has
articulated no basis for interring the test before it has been given a chance to
breathe.

83 Stat. 852, 42 U.S.C. 4321 Et seq.

Respondents asserted jurisdiction under 5 U.S.C. 701-706, 28 U.S.C.

1331(a), and 28 U.S.C. 1361.

Prior to ruling on motions for summary judgment, the District Court permitted
intervention as defendants by several public utilities, coal mining companies,
and natural gas companies, by an Indian tribe, and by an individual rancher.
Most of these intervenors have joined in a separate petition for certiorari in No.
75-561, which is decided together with this case.

On the same date the Court of Appeals remanded to the District Court
respondents' motion for modification of the injunction to prohibit the Secretary
from approving a new mining plan submitted by a coal company, not then a
party to the suit, that had been mining coal on leased federal land since 1972.
The new mining plan was covered by an impact statement. The Secretary of the
Interior approved the plan on November 11. On November 14, the District
Court partially enjoined the company from mining under the approved plan.

Department of Interior News Release (Oct. 3, 1972), App. 132.

NGPRP outline, App. 136.

Department of Interior News Release (Feb. 17, 1973), App. 125-127.

The petitioners in No. 75-561 have included in their brief a press release by the
Secretary announcing the new program, and a detailed description of the
program. Pending full operation thereof, the short-term leasing policy remains
in effect.

In the District Court respondents also contended that petitioners had failed to
comply with 102(2)(A) and (D), 42 U.S.C. 4332(2)(A) and (D), which
require an agency to use a specified approach to decisionmaking and to describe
alternatives when a proposal involves unresolved conflicts concerning uses of
resources. (Subparagraph (D) was redesignated subparagraph (E) by Pub.L. 94-

83, 89 Stat. 424.) The District Court ruled against respondents on the count
based on these subparagraphs, and it has dropped out of the case.
10

In an affidavit submitted in support of the application for a stay of the Court of

Appeals' injunction, the Secretary described four impact statements completed
by the petitioners on coal-related activity in Montana and Wyoming. One was
the multiproject statement on the Powder River Coal Basin that was the subject
of that injunction. See Supra, at 395-396. Another was on the single mining
plan subsequently brought under the injunction as modified by the District
Court. See n. 4, Supra. A third covered one leased tract, and apparently was
occasioned by an application for approval of a new mining plan on the tract.
The fourth, on another single mining plan, has been the subject of litigation, on
the merits of which we intimate no view. See Cady v. Morton, 527 F.2d 786
(CA9 1975).

11

The Secretary's affidavit in support of the application for a stay of the Court of
Appeals' injunction confirms that the situation regarding regional planning or a
regional development program has not changed. See App. 195-196.

12

The legislative history of NEPA fully supports our reading of 102(2)(C) as to

when an impact statement is required. The bill passed by the House contained
no provision comparable to 102(2)(C) of the Act. The bill that was reported to
and, as amended, passed by the Senate did contain the forerunner of 102(2)
(C). The committee report made clear that the impact statement was required in
conjunction with specific proposals for action. S.Rep.No.91-296, p. 20 (1969).
After the House-Senate Conference, the managers on the part of the House, in a
separate statement, explained 102(2)(C) in language that tracks the statute on
the requirement of a proposal. H.R.Conf.Rep.No.91-765, p. 8 (1969), U.S.Code
Cong. & Admin.News 1969, p. 2767. See also 115 Cong.Rec. 40420 (1969).

13

Section 102(2)(C) states that the statement must be a detailed statement on

"(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 enhancement of long-term productivity, and
"(v) any irreversible and irretrievable commitments of resources which would
be involved in the Proposed action should it be implemented." (Emphasis

added.)
14

In contrast, with both an individual coal-related action and the new national
coal leasing program, an agency deals with specific action of known
dimensions. With appropriate allowances for the inexactness of all predictive
ventures, the agency can analyze the environmental consequences and describe
alternatives as envisioned by 102(2)(C). Of course, since the kind of impact
statement required depends upon the kind of " 'federal action' being taken,"
Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322, 95 S.Ct. 2336,
2357, 45 L.Ed.2d 191 (1975), the statement on a proposed mining plan or a
lease application may bear little resemblance to the statement on the national
coal-leasing program. Nevertheless, in each case the bounds of the analysis are
defined, which is not the case with coal development in general in the region
identified by respondents.

15

This is not to say that 102(2)(C) imposes no duties upon an agency prior to its
making a report or recommendation on at proposal for action. This section
states that prior to preparing the impact statement the responsible official "shall
consult with and obtain the comments of any Federal agency which has
jurisdiction by law or special expertise with respect to any environmental
impact involved." Thus, the section contemplates a consideration of
environmental factors by agencies during the evolution of a report or
recommendation on a proposal. But the time at which a court enters the process
is when the report or recommendation on the proposal is made, and someone
protests either the absence or the adequacy of the final impact statement. This is
the point at which an agency's action has reached sufficient maturity to assure
that judicial intervention will not hazard unnecessary disruption.

16

Even had the Court of Appeals determined that a regional impact statement was
due at that moment, it still would have erred in enjoining approval of the four
mining plans unless it had made a finding that the impact statement covering
them inadequately analyzed the environmental impacts of, and the alternatives
to, their approval. So long as the statement covering them was adequate, there
would have been no reason to enjoin their approval pending preparation of a
broader regional statement; that broader statement, when prepared, simply
would have taken into consideration the regional environmental effects of the
four mining plans once they were in operation, in determining the permissibility
of further coal-related operations in the region. See Part V, Infra.

17

Petitioners lodged with this Court a copy of the massive six-volume impact
statement on the projects in the Powder River Coal Basin, but it is not part of
the record.

18

The term "action-forcing" was applied to the provisions of what became

102(2) throughout their consideration by the Senate. See, E. g., S.Rep.No.91296, p. 9 (1969); 115 Cong.Rec. 40416, 40419 (1969).

19

The legislative history of the provision in the Senate, where it originated and
where it received the most attention, supports this interpretation. See
S.Rep.No.91-296, Supra, at 2, 20-21; 115 Cong.Rec. 29052-29053, 29055,
29058, 40416 (1969). The Conference Report to the House is consistent. See
Id., at 40923-40928.

20

At some points in their brief respondents appear to seek a comprehensive

impact statement covering contemplated projects in the region as well as those
that already have been proposed. The statute, however, speaks solely in terms
of Proposed actions; it does not require an agency to consider the possible
environmental impacts of less imminent actions when preparing the impact
statement on proposed actions. Should contemplated actions later reach the
stage of actual proposals, impact statements on them will take into account the
effect of their approval upon the existing environment; and the condition of that
environment presumably will reflect earlier proposed actions and their effects.
Cf. n. 26, Infra.

21

Neither the statute nor its legislative history contemplates that a court should
substitute its judgment for that of the agency as to the environmental
consequences of its actions. See Scenic Hudson Preservation Conference v.
FPC, 453 F.2d 463, 481 (CA2 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453,
32 L.Ed.2d 813 (1972). The only role for a court is to insure that the agency has
taken a "hard look" at environmental consequences; it cannot "interject itself
within the area of discretion of the executive as to the choice of the action to be
taken." Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 16,
458 F.2d 827, 838 (1972).

22

The document is an "Executive Summary and Decision Document" signed by

the Secretary and dated December 16, 1975. The decision as to impact
statements is part of the implementation of the new coal-leasing policy based
on staff recommendations following release of the Coal Programmatic EIS. See
Supra, at 397-398.
Respondents contend that this document represents a significant shift in
Department policy since the start of this litigation, but we disagree. Early in the
litigation the Department and three other agencies prepared the comprehensive
impact statement on proposed actions in the Powder River Coal Basin, see
Supra, at 395; its preface quoted by the District Court states that it evaluated
"the collective impacts of the proposed actions and, insofar as now possible, the

impacts of potential future coal mining within the geographic area." Moreover,
the Secretary's consistent position, in affidavits dating back to the District
Court, has been that statements might be prepared on regions or "subregions"
once the Coal Programmatic EIS was completed. While the affidavits did not,
until the application for a stay of the injunction, expressly predicate preparation
of such statements upon the pendency of several proposals within the region or
subregion, neither are they inconsistent with such predication.
23

On the "programmatic" relationship, respondents also rely on the assertion that

all of the projects involve similar methods of mining and converting the
region's coal. Assuming this to be correct, we do not think it significant.

24

They rely also on the North Central Power Study and the Montana-Wyoming
Aqueducts Study, but each covered an area different from respondents' region
and, moreover, it is not clear that either was primarily an environmental study.
See Supra, at 397.

25

For example, respondents assert that coal mines in the region are
environmentally interrelated because opening one reduces the supply of water
in the region for others. Petitioners contend that the water supply for each
aquifer or basin within the region of which there are many is independent.
Moreover, petitioners state in their reply brief that few active or proposed mines
in respondents' region are located within 50 miles of any other mine, and there
are only 30 active or proposed mines in the entire 90,000 square miles of the
region.

26

Nor is it necessary that petitioners always complete a comprehensive impact

statement on all proposed actions in an appropriate region before approving any
of the projects. As petitioners have emphasized, and respondents have not
disputed, approval of one lease or mining plan does not commit the Secretary to
approval of any others; nor, apparently, do single approvals by the other
petitioners commit them to subsequent approvals. Thus, an agency could
approve one pending project that is fully covered by an impact statement, then
take into consideration the environmental effects of that existing project when
preparing the comprehensive statement on the cumulative impact of the
remaining proposals. Cf. n. 20, Supra.

Nothing in Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U.S. 776, 96 S.Ct.
2430, 49 L.Ed.2d 205 (1976), suggests that work on an impact statement
cannot successfully begin in situations identified by this four-part test. In Flint
Ridge, in considering whether an agency should begin work on an impact
statement arguably necessary for federal approval of certain private action by a
real estate developer, we rejected the claim that the agency should begin work

before the private action was submitted to the agency for approval. "The agency
could not fruitfully begin the impact statement until the developer's plans were
fully or largely worked out. . . . " Id., at 791 n. 13, 96 S.Ct., at 2439 n. 13.
This language is not contrary to the Court of Appeals' position here for two
reasons. First, the quoted language recognizes that an impact statement could
be begun when the developer's plans were largely worked out, essentially the
situation the four-part test would identify as appropriate for initiation of work
on an impact statement. Second, and more important, Flint Ridge concerned
federal approval of private action rather than federal initiation of its own
project, at issue here. This distinction has been recognized before, Aberdeen &
Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2356, 45
L.Ed.2d 191 (1975), and is recognized by the Court today. When the federal
agency is initiating its own proposal, NEPA is more demanding. In such
circumstances, NEPA is "intended to assure (environmental) consideration
during the development of (the) proposal," whereas when private action is to be
approved, NEPA seeks only to assure such consideration "during the
formulation of a position on (the) proposal submitted by private parties." Ante,
at 409 (footnote omitted).
Nor are other parts of the Court's opinion today inconsistent with the Court of
Appeals' approach. While it is true in general, as the Court observes, that in the
absence of a proposal there is nothing for an impact statement to analyze, Ante,
at 401-402, the observation is a generalization plainly inapplicable to situations
identified by the four-part test.
2

The Court attempts to discredit the Court of Appeals' conclusion that the
Government contemplates a regional development plan or proposal. The Court
confuses the possibility of such a plan all that is needed to prompt application
of the four-part test with its reality. All the parties, the District Court, and the
Court of Appeals are agreed that no regional plan exists in this case. But the
Government concedes that a regional plan is contemplated in the sense the
Court of Appeals used the term. "(I)t would be accurate to conclude that
petitioners 'contemplate' regional planning (although not necessarily for the
region defined by respondents) because, as the district court found . . . , and as
the National Impact Statement confirms, '(i)t is possible a decision will be made
to prepare a statement for the entire Northern Great Plains region, but the
information available (to petitioners) may indicate that statements on smaller
subregions, geologic structures, basin, or selected individual actions' will be
preferable." Brief for Federal Petitioners 40 n. 32.
Thus, the Court's conclusion that "the Court of Appeals erred in . . . its factual
assumptions," Ante, at 403, either misapprehends the factual assumptions

necessary to the Court of Appeals' theory or is entirely without support in the

record.