(concurring).
I concur in the foregoing opinion but write additionally to stress two points. First, in my view the record indicates that the appellee Society (Society) has delayed the Garrison Diversion through a misuse of the National Environmental Protection Act (NEPA). The Society, by indirect means, has attempted to enforce a substantive environmental mandate allegedly based on the NEPA that is not authorized by the terms of the law. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).
The requirements of the NEPA are limited to the requirement that the agencies “consider” environmental impact in all their matters. As the Supreme Court stated per curiam in Strycker’s Bay, supra, NEPA is “essentially [a] procedural [statute] . .. designed to insure a fully informed and well-considered decision [but not one] ... that [compels] an agency, in selecting a course of action, [to] elevate environmental concerns over other appropriate considerations .. . [T]he only rule for a court is to insure that the agency has considered the environmental consequences ...” 444 U.S. at 227, 100 S.Ct. at 500; citing Kleppe v. Sierra Club, supra, 427 U.S. at 410, n.21, 96 S.Ct. at 2730 (emphasis added).
Practically every major construction project authorized by Congress affects the environment to some degree. The agencies must “ consider*’ these effects, but there is nothing in NEPA that requires any agency to refuse to proceed with any project, or to alter it, because of the environmental consequences it has “considered” as required by NEPA. Agencies must “consult” with experts (42 U.S.C. § 4332(2)(C)), “solicit the views” of outsiders, id., (D)(IV), “study, develop and describe appropriate alternatives ...” id., (E), and use “ecological information in the planning and development of resource-oriented projects,” id., (H). Having done all this, however, and having given consideration to such information, they should be immune from incessant litigation. Some organizations by a misuse of NEPA have directly caused the cost of some projects to increase by billions of dollars.
Second, that Executive Branch officials and private parties cannot by contract or agreement compel Congress to adopt legislation to. change a previously authorized project unless there is something illegal about the project Congress has authorized.