$Unique_ID{USH01393} $Pretitle{122} $Title{Report of the Council on Environment Quality Chapter 6 The National Environmental Policy Act} $Subtitle{} $Author{Hill, A. Alan} $Affiliation{Council on Environmental Quality} $Subject{court environmental nepa federal ceq eis impacts impact project analysis} $Volume{} $Date{1988} $Log{} Book: Report of the Council on Environment Quality Author: Hill, A. Alan Affiliation: Council on Environmental Quality Date: 1988 Chapter 6 The National Environmental Policy Act Highlights of 1987 and 1988 During 1987, CEQ co-sponsored a conference on preparation and review of environmental impact statements at both the federal and state level. Held in West Point, New York, the conference was the first comprehensive, national examination of this topic since CEQ promulgated the regulations implementing the procedural provisions of the National Environmental Policy Act (NEPA) in 1978. A special feature of this appendix is a compendium of legal authorities, significant cases, and state contacts for state environmental impact assessment laws (state "little NEPAs"), which was developed as part of the 1987 conference at West Point, New York. In 1987, CEQ issued Findings and Recommendations on the referral by the U.S. Environmental Protection Agency of proposed amendments to the U.S. Army Corps of Engineers' NEPA procedures. CEQ has also initiated a comprehensive survey on compliance with Executive Order 12114, covering Environmental Effects of Federal Actions abroad. During 1988, CEQ issued Findings and Recommendations on a referral by the Department of the Interior regarding proposed overflights by the Department of the Navy impacting the Cape Lookout National Seashore in North Carolina. Other activities related to NEPA throughout this period included emergency relief actions, participation in international environmental impact assessment activities, and advice concerning NEPA responsibilities for particular proposed actions. Some of the significant appellate and district court decisions dealing with NEPA issues during 1987 and 1988 are discussed below, including two cases that were subsequently heard in the Supreme Court of the United States during the 1988-89 term (Oregon Natural Resources Defense Council v. Marsh and Methow Valley Citizens Council v. Regional Forester). Both of these cases deal with the issues of worst case analysis and mitigation. Other significant cases dealt with the appropriate timing for NEPA review of oil and gas leasing on public lands, and the analysis of cumulative effects of proposed actions. The annual CEQ survey of NEPA litigation showed a continuation of the trend in the number of NEPA lawsuits filed against federal agencies (1986 - 83 cases; 1987 - 80 cases). The discussion is supplemented with charts showing the breakdown of lawsuits by federal agency, type of plaintiff, and type of complaint. Additionally, there is a chart reflecting cumulative totals from the past seventeen years of NEPA litigation. CEQ and the NEPA Regulations: 1987 and 1988 Activities CEQ promulgates and interprets the regulations implementing the procedural provisions of the National Environmental Policy Act. Those regulations are binding on all federal agencies in the executive branch of government. 40 C.F.R. 1500-1508(1987). During 1987, CEQ continued to fulfill its responsibilities related to these regulations. These activities include: informal consultation with federal agencies regarding appropriate implementation of NEPA procedures; approval of federal agency NEPA procedures and amendments to those procedures; informal consultation with state and local governments and private citizens regarding NEPA procedures; commenting on proposed legislation and testimony which is related to NEPA; designating lead agencies for the purpose of preparing environmental impact statements (EIS); making determinations on requests for emergency exemptions and alternative procedures for supplemental EIS(s); handling formal referrals to CEQ of major federal activities; participating in international activities related to environmental impact assessment; and disseminating information about the NEPA process to interested parties. During 1987, CEQ: - Issued Findings and Recommendations of the Council regarding the Referral of Proposed Amendments to the Army Corps of Engineers' NEPA Procedures. The CEQ NEPA regulations include procedures for referring to CEQ federal interagency disagreements concerning proposed major federal actions that might cause unsatisfactory environmental effects. See 40 C.F.R. Part 1504. Under these provisions, the Environmental Protection Agency (EPA), referred to CEQ proposed amendments to the Army Corps of Engineers' NEPA procedures. After extensive study of the proposed amendments, including participation from interested agencies and members of the public, CEQ issued Findings and Recommendations which addressed the four issues raised in the referral; specifically: - Scope of analysis: "The Army's current regulation addressing the scope of analysis can 'federalize' private or state or local projects over which, absent one Army permit, the federal government has neither control nor responsibility. CEQ finds that Army's proposal to amend this regulation is generally within reasonable implementing agency discretion and that policy and management considerations favor amending the regulation to provide formal and consistent guidance to Corps field personnel. However, CEQ offers comments and recommendations to improve the usefulness of the . . . guidance to District Engineers charged with determining the scope of analysis." - Purpose and Need: "CEQ finds that the proposed regulation is generally adequate, but recommends that additional language be inserted in the amendment to the effect that the agency must, in all cases, exercise independent judgment regarding the public purpose and need for the proposal." - Analysis of Alternatives in Environmental Assessment: "There is no legal requirement to include a specific reference to 'water dependent activities' under the Section 404(b)(1) guidelines in the Army's NEPA procedures. However, CEQ recommends that in the spirit of consistency with the CEQ regulations and as sound management policy, specifically to reduce duplication and paperwork and to increase efficient compliance with both NEPA and the Clean Water Act, the Army procedures retain the requirement to integrate into the environmental impact analysis the alternatives to non-water dependent activities under Section 404(b)(1)." - Page Limits on Environmental Impact Statements: "CEQ finds that the Army's proposed regulation to be premature in that the Army has not presented any evidence demonstrating that there has been a conscious effort to abide by the CEQ page limit recommendations. CEQ recommends that the Army attempt concerted compliance with the CEQ regulation [40 C.F.R. 1502.7] before proposing a reduced page limit." Recommendations of the Council on Environmental Quality regarding the proposed amendments to the Army Corps of Engineers' Procedures Implementing the National Environmental Policy Act, 52 Federal Register 22517, June 12, 1987. - Co-sponsored (with the Environmental Law Section of the New York State Bar) and participated in a Conference on Preparation and Review of Environmental Impact Statements, at West Point, New York, November 17-18. This national conference brought together representatives of the federal government and state and local agencies from all parts of the United States, as well as representatives from Canada. The conference sessions were organized around the themes of comparative federal and state environmental impact statement processes and procedures, technical analysis and contents of EIS(s) and uses of EIS(s). - Initiated a comprehensive survey of federal agency compliance with Executive Order 12114, covering Environmental Effects of Federal Actions Abroad. - Held Sunshine Act meetings on atmospheric issues, terrestrial impacts, and human health impacts of ozone depletion and the greenhouse effect. - Worked extensively with staff of the Federal Energy Regulatory Commission (FERC), culminating in approval of the first FERC NEPA procedures to adopt the CEQ regulations. - Participated in proceedings of the Administrative Conference of the United States as a Liaison Member (Committee on Administration). - Granted emergency relief under the NEPA regulations to the U.S. Fish and Wildlife Service for destruction of five million juvenile upright bright fall chinook salmon in Skamania County, Washington, which were diagnosed as having infectious hematopoietic necrosis. The virus causes potentially uncontrollable losses in trout and salmon. - Contributed to and vigorously supported formulation and passage of Principles and Guidelines for Environmental Impact Assessment for United Nations Environment Programme. - Led American delegation at second meeting of environmental impact assessment project in Japan, under the US-Japan Environmental Agreement. - Met with representatives of the Animal and Plant Health Inspection Service, EPA, and members of the environment community to discuss appropriate NEPA compliance for the Animal Damage Control program. - Led the American delegation to Economic Commission for Europe (ECE) seminar on environmental impact assessment. - Met with and advised numerous federal agencies on NEPA responsibilities for specific proposed actions. During 1988, CEQ: - Issued Findings and Recommendations of the Council regarding the Referral of Proposed Overflights by the Department of the Navy Impacting the Cape Lookout National Seashore, North Carolina. In December, 1987, the Department of the Interior referred to CEQ a proposal by the Department of the Navy (United States Marine Corps) to establish the Cherry I and Core Military Operating Areas (MOA) at Cherry Point, North Carolina. The primary issue raised in the referral was the potential noise impact on the Cape Lookout National Seashore which is managed by the National Park Service. The CEQ held a public meeting in January, 1988, and provided an opportunity for written comments to be submitted for the CEQ's consideration. The CEQ Chairman and staff conducted a site visit and held additional meetings in the area in May, 1988. By letter dated September 13, 1988, CEQ made several findings and recommendations. Specifically: - Alternatives: CEQ was unable to conclude that there were any reasonable alternatives available to the Marine Corps for its low altitude, high speed training flights. Thus, CEQ stated that the National Park Service and the Marine Corps should work together to mitigate the expected noise impacts on the seashore. As part of this resolution, the Marine Corps should undertake environmental monitoring studies which examine the actual impacts of the overflights on the park. - Cumulative effects: CEQ found that the cumulative effects of military airspace use over North Carolina had not been adequately considered, and that the Federal Aviation Administration (FAA), the agency which will give final authority for the overflights, must prepare a cumulative impact analysis as part of its NEPA documentation for the Cherry I and Core MOA designation request. - Agency coordination: CEQ found a need for coordination within the Department of Defense to adequately assess the cumulative impacts of the military agencies' airspace use requests, and a need for consideration of the inherent conflicts between airspace use and land use below. CEQ also found that the FAA needs to play a larger role in the assessment of competing uses and of cumulative impacts of all its airspace designation decisions. Findings and Recommendations by the Council on Environmental Quality Regarding the Establishment of the Cherry I and Core Military Operating Areas Over Cape Lookout National Seashore, North Carolina, 53 Federal Register 36357, September 19, 1988. - Reviewed and approved revisions to NEPA procedures for the Farmers Home Administration, the Department of Housing and Urban Development, and the Department of the Army. The Department of the Army revisions included important changes related to implementation of NEPA and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund); mitigation and monitoring responsibilities, and categorical exclusions. In addition to the formal consultations and approvals given by CEQ, CEQ worked with the Department of the Navy, the Department of the Air Force, the Forest Service, the Federal Aviation Administration, the Federal Communications Commission and the Nuclear Regulatory Commission to develop or revise those agencies' NEPA regulations. - Authorized an emergency exemption for the issuance of a license for a hydroelectric facility at the Milner Dam on the Snake River, Idaho, to permit repairs to be made to the dam. The dam was in danger of failing, which would have caused loss of irrigation to approximately 440,000 acres of farmland and possible loss of life. - Met with numerous federal agencies, including the National Aeronautic and Space Administration, the Minerals Management Service, the National Institutes of Health, the Farmers Home Administration, the Rural Electrification Administration, the Food and Drug Administration, and the National Science Foundation, to review general NEPA compliance issues. - Testified before the Secretary of Defense's Commission on Base Realignment and Closure on the subject of how environmental impacts should be considered in base closure recommendations. - Consulted with federal agencies and private organizations regarding the National Science Foundation's activities in the Antarctic, in relation to compliance with NEPA and Executive Order 12114, Environmental Effects of Major Federal Actions Abroad. - Advised the Federal Highway Administration on a proposed "tiering" approach to NEPA compliance for a proposed bypass highway for the greater metropolitan Washington, D.C. area. - Consulted with the Federal Aviation Administration concerning the NEPA documentation for airports in New Hampshire and North Carolina and for a flight plan modification over New Jersey. - Advised the National Oceanic and Atmospheric Administration on compliance with NEPA with respect to that agency's obligations to implement the Marine Mammal Protection Act Amendments of 1988. - Attended a meeting of experts of the Economic Commission for Europe to consider a draft framework agreement for environmental impact assessment in a transboundary context. - Attended a Joint Committee Meeting under the auspices of the US-USSR Agreement on Cooperation in the Field of Environmental Protection, and conducted the eighth project meeting of Area XI under that Agreement, Legal and Administrative Measures for the Protection of the Environment. NEPA Litigation - 1987 United States Supreme Court No cases concerning NEPA were heard by the United States Supreme Court in 1987. United States Courts Of Appeals: Selected Decisions Oregon Natural Resources Defense Council v. Marsh, 820 F.2d 1051(9th Cir. 1987). Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (9th Cir. 1987). The issues of mitigation and "worst case" analysis were presented in two similarly decided cases in the Court of Appeals for the 9th Circuit. In Oregon Natural Resources Defense Council v. Marsh (Marsh), the court enjoined the Corps of Engineers from construction of the Elk Creek Dam in Oregon because of the inadequacy of the final Supplemental EIS (SEIS). The Elk Creek Dam was part of a larger Rogue River basin hydroelectric project in which two dams had previously been constructed. Plaintiffs contended that the SEIS for the Elk Creek Dam was inadequate because the mitigation plan for wildlife contained neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. Plaintiffs, citing conflicting results from the studies on the two previous dams, also asserted that the SEIS was inadequate because information concerning turbidity was unknown at the time of the drafting of the document and that therefore a "worst case" analysis was necessary. In Methow Valley Citizens Council v. Regional Forester, the Court ruled that the environmental impact statement drafted in response to the application for a special use permit to develop an alpine ski resort in Central Washington was inadequate. Plaintiffs argued that mitigation measures to reduce new sources of air pollution were not sufficiently detailed. Plaintiffs had also alleged that the ski resort would bring increased development to the adjacent area, an important migration route for mule deer, and that as the Forest Service did not have the necessary information concerning the mule deer, a worst case analysis should have been included in the EIS. In each case, the plaintiff alleged that the final EIS was deficient in that it failed to adequately "develop" a mitigation plan which should include technical data and analysis. The court agreed, and in reversing the lower court decisions, determined that measures to compensate for wildlife loss upon construction of Elk Creek Dam in Marsh and measures to reduce on-site pollution from the proposed ski facility in Methow Valley had not been sufficiently developed at the completion of the EIS's. Citing a CEQ regulation, 40 C.F.R. Section 1502.16(h), the Court stated in Marsh that, "An EIS must include a discussion of measures to mitigate adverse environmental impacts of the proposed action . . . . We fail to see how mitigation measures can be properly analyzed and their effectiveness explained when they have yet to be developed. The court also noted the absence of a listing of techniques, such as the identification of "specific habitat development measures" and of the lack of analysis of the mitigation measures. The Court summed up its decision in Marsh by stating, "Without a complete mitigation plan, the decision-maker is unable to make an informed judgment as to the environmental impact of the project one of the main purposes of an environmental impact statement." On the issue of "worst case" analysis, both Marsh and Methow Valley held that such an analysis is necessary whenever an agency is unable to obtain information on which to base a reasoned decision or in the situation where the costs of obtaining the information are exorbitant. As these situations existed in both cases, the Court ruled that the EIS's of both the Corps of Engineers in Marsh and the Forest Service in Methow Valley were inadequate because neither agency had prepared the necessary worst case analysis. In coming to its decision, the Court had cited both Save Our Ecosystems v. Clark, and CEQ's now rescinded "worst case" requirement at 40 C.F.R. 1502.22(b). The Corps and the Forest Service had argued that Section 15022.22(b) is inapplicable due to its amendment by CEQ but the court rejected their contentions by citing Clark and by stating in a footnote that, "The worst case regulation is a codification of prior NEPA case law. The two cases have been consolidated and accepted for certiorari by the U.S. Supreme Court." Friends of the Earth v. Hintz, 800 F.2d 822(9th Cir. 1987). A different aspect of mitigation was reviewed in Friends of the Earth v. Hintz. Here, the Court considered the question of whether mitigation measures that are accomplished "off site" can be the basis for a Finding of No Significant Impact (FONSI) and the related decision not to draft an EIS. In Hintz, a logging company had applied to the Corps of Engineers for a 404 permit under the Clean Water Act to fill a wetland that it was already utilizing. The timber company reported in their permit application that their log storage activities were water dependent and therefore site specific and proposed to mitigate the wetland loss by promising to purchase another site which could be converted to wetland. Plaintiffs had contended that off-site mitigation measures which do not directly reduce impacts but only compensate elsewhere cannot justify a FONSI. The court disagreed, citing Corps regulations permitting off-site mitigation and CEQ regulations which define mitigation as including, "compensation for the impact by replacing or providing substitute resources or environment." The court pointed out that where off-site mitigation is chosen, CEQ regulations do not specifically relieve an agency from preparing an EIS nor specifically require the preparation of an EIS. The court reasoned that since Corps regulations state that mitigation measures may be considered in determining if an EIS is necessary and that the Corps had specifically approved off-site mitigation then, "we see no reason why off-site mitigation cannot be considered in determining whether to prepare an EIS just as on site mitigation. The plaintiffs also argued that the logging company's offer to purchase property for conversion to wetland could not be relied upon for a FONSI, as the offer was not part of the original proposal nor was it imposed by statute or regulation as stated by Question 40 of CEQ's document "40 Questions." The Court however rejected this argument by stating that the courts have held that CEQ's 40 Questions Document "is not a regulation, but merely an informal statement and is not controlling authority." Maryland Conservation Council Inc. v. Gilchrist, 808 F.2d 1039(4th Cir. 1987). Taxpayers Watchdog v. Stanley, Inc., 819 F.2d 294(C.A. D.C. 1987). Two different approaches were taken in two 1987 appellate court decisions concerning the issue of segmentation. In Maryland Conservation Council Inc. v. Gilchrist, Montgomery County officials had authorized the construction of portions of a highway designed to pass through Seneca Creek State Park. Approval to use the park for the highway had not been granted by the Department of the Interior at the time of the commencement of construction by the County and the plaintiffs contended that the County had violated NEPA by authorizing construction of segments of the highway before the requisite federal agencies reviewed the project plans. The two segments of the highway under construction by Montgomery County were to have been connected by the park portion. The court agreed with the plaintiff, stating that, "Because it is inevitable that the construction of the highway will involve a major federal action, it follows that compliance with NEPA is required before any portion of the road is built." Quoting CEQ regulation 1506.1(a)(2) the court in Gilchrist hinged the decision on whether "the program in fact violates NEPA and its regulations by limiting 'the choice of reasonable alternatives' available to federal decision-makers." Pointing out that if investments in the highway route were made before the government official had considered the environmental report on the project, the judge wrote that the options open to the decision maker would diminish and at some point his consideration of the action would become a mere formality. The court rejected the County's allegations that portions of the highway were not subject to federal approval by saying, "Non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli." A different approach was taken in Taxpayers Watchdog v. Stanley, Inc. in which the court concentrated on the question of whether the segmented part of a project was independently viable. In Taxpayers, the Urban Mass Transportation Administration (UMTA) had drafted an EIS for a proposed 4 mile section of a metro rail system in Los Angeles (titled MOS-1) without discussing the impacts of the entire transit system. The rail system plans had been curtailed indefinitely due to federal budget cuts but federal funds were still available for the MOS-1 segment and the county was still proposing the construction of that segment. The plaintiffs had not challenged the adequacy of the environmental assessment concerning the MOS-1 segment but did assert that it was part of a larger project which could not be separated from the whole. The court however held that the rule against segmentation should not be applied in every situation and the MOS-1 project could be separated from the overall plans for a regional transit system because, "MOS-1 is an independent project that would make a much needed contribution to Los Angeles' transit system." The court gave a four part test to determine the scope of the EIS in such situations. Included in the test is whether the proposed segment, "(1) has a logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity to consider alternatives, and (4) does not irretrievably commit federal funds." The court decided that the project indeed met the test and ruled that on its own the MOS-1 project was a viable project with logical endpoints that allowed it to be assessed separately from the larger transit plan. The Taxpayer factual situation is distinguishable from that in Gilchrist in that the MOS-1 system met the first two parts of the test - a logical termini and substantial independent utility - and the highway in Gilchrist clearly did not. The segments of the highway constructed by the county in Gilchrist, could not have had independent utility or a logical termini unless they connected passing through the park whereas MOS-1 did have an independent utility and did not need any connecting portions or future federal decisions to be useful on its own. The judge in Taxpayer expanded the test further by balancing the need for flexibility in important local planning decisions against the environmental impacts that the immediate project would cause: here the MOS-1 portion made a much needed contribution to a city that was facing a debilitating deadly gridlock and plaintiffs had not objected to the environmental review of MOS-1. The court, which had earlier stated that the segmentation doctrine should not be applied in every situation, concluded that Los Angeles' official's need for flexibility in their attempts to alleviate their huge transportation problems was one such situation where segmentation should not be applied. But the Taxpayers decision, unlike Gilchrist, did not include a discussion of the applicability of the CEQ regulation, which states that no actions should be taken that would limit the choices of alternatives that are available to federal officials. The Taxpayer court therefore, did not address the point that so clearly troubled the Gilchrist court; whether a federal decision maker's options would be diminished or his judgment influenced if part of a transportation system had already been funded. Foundation on Economic Trends v. Lyng, 817 F.2d 882 (C.A. D.C. 1987). The necessity for the preparation of programmatic EIS' were discussed in Foundation on Economic Trends v. Lyng. In Foundation, the plaintiffs asserted that the U.S. Department of Agriculture's animal productivity research constitutes a "major federal action" under NEPA because the research is directed toward a single policy objective. In asserting that a programmatic EIS was necessary plaintiffs relied on CEQ's regulation, 40 C.F.R. Section 1508.18(b)(3) which states that the adoption of programs, such as "a group of concerted actions to implement a specific policy" constitutes a federal action. The court however, rejected the plaintiff's interpretation, stating that "mere commonality of objective is insufficient under the guidelines to constitute a major federal action." The court explained that for a series of actions to be defined as a major federal action, CEQ regulations 40 C.F.R. 1502.4(a) and 1508.25(a)(1) require more than just a common, underlying policy: the agency's projects or decisions must be "concerted" or "systematic and connected." The court stated that, under Section 1508.25(a)(1), separate projects could be considered sufficiently concerted or connected to make up a program or action, if they; "(i) Automatically trigger other actions which may require environmental impact statement." (ii) "Cannot or will not proceed unless other actions are taken previously or simultaneously." (iii) "Are interdependent parts of a larger action and depend on the larger action for their justification. Based on these factors, the court decided that USDA research projects with rudimentary similarities do not suffice 'to bind into a program' simply because they all have the common goal of increasing animal productivity. The court also emphasized that EIS requirements are triggered by concrete proposals for action and held that the objectives of scientific research, specifically, the objectives of USDA's scientific research, are not 'proposals for action.'" The court's decision was partly based on its overall concern that NEPA litigation not be used for resolving fundamental political disputes, such as whether animal research projects cause unacceptable health hazards. The court was troubled by the generality of the plaintiff's complaint which did not cite any complaints about specific projects but only referred to the connection between USDA's research goals and increases in animal disease, and the dangerous use of antibiotics. Ringsred v. City of Duluth, 828 F2d 1305(8th Cir. 1987). The 8th Circuit addressed the issue of whether a very small federal act which is part of a much bigger non-federal project can be used as a "handle" to bring the action under NEPA. In Ringsred v. Duluth, an Indian Tribe had leased property held in trust by the Secretary of Interior to be renovated and used as a gaming facility. After preparing an environmental assessment on the renovation activities the Department of Interior approved the lease. As part of the overall agreement with the Indian tribe, the City of Duluth had agreed to construct a parking ramp for the gaming facility. Plaintiffs had contended that as the lease approval was part of a larger project, then the Department of Interior was required to assess the environmental impact of the parking facility. The court disagreed, concluding that the Secretary's approval of the lease relating to the City's parking ramp project did not transform the project into part of a major federal action whose environmental effects should have been reviewed under NEPA. The court noted that the Secretary did have factual veto power relating to the parking ramp but then explained that this veto power did not signify enough to make the project a major federal action. The court set out three factors to consider in deciding whether a "small federal handle" can turn an essentially private or non-federal project into a federal one for purposes of NEPA: "(1) the degree of discretion exercised by the agency over the federal portion of the project; (2) whether the federal government has given any direct financial aid to the project; and (3) whether the overall federal involvement with the project [is] sufficient to turn an essentially private action into federal action. Here, since the federal government 'has no input regarding the design or construction of the ramp' and supplied no financial aid to the project nor did it receive any revenue from it, the federal government's activity was deemed insufficient to term the entire gaming and parking facility a federal project. The court pointed out that the city itself could have constructed the parking lot without federal approval indicating that the project did not depend on the federal government approval which would have given plaintiffs the 'small federal handle.'" The court, in addressing a closely related matter, also determined that the original environmental assessment need not have considered the parking ramp as a secondary or indirect impact of the proposed sub-lease approval for the gaming facility as the parking ramp was only in proposal stage at that time. The court was concerned that if federal agencies had to speculate as to the environmental impacts of privately proposed developments that are outside the control of the federal government, the burden on federal agencies under NEPA might double. District Courts: Selected Decisions Alabamians For A Clean Environment v. EPA, 26 ERC 2117 (D.C.N. Alabama 1987). In one of a series of cases excusing some of the Environmental Protection Agency's (EPA) programs from compliance with NEPA, an Alabama District Court found that EPA's permit process for waste treatment and disposal under the Resource Conservation and Recovery Act (RCRA) should be considered the functional equivalent of NEPA. In Alabamians For A Clean Environment v. EPA, four environmental groups had challenged the EPA's decision to grant a permit to an Alabama chemical waste treatment company attempting to secure a federal hazardous waste disposal permit from the EPA. The plaintiffs successfully asserted that the district court had jurisdiction in the matter as they could not possibly exhaust their administrative remedies (within EPA) first, because the RCRA permit appeal process does not give an opportunity to address NEPA issues. They were not successful, however, in their substantive contention that when granting permits under RCRA, EPA must engage in the environmental review process mandated by NEPA for "all agencies of the Federal government." The court, in rejecting that contention, pointed out that a long line of cases had recognized an exemption for the EPA where its adherence to the requirements of various organic statutes are the functional equivalent of NEPA. The court specifically held that the RCRA permitting process does give sufficient consideration for environmental matters and therefore is the functional equivalent of NEPA. Under RCRA, the court noted the numerous factors and standards pertaining to environmental protection which must be taken into account. These factors include: general waste and landfill standards, management of hazardous waste, chemical and physical analysis, and public comment and public hearing requirements. The court, noting all of the above requirements stated, "In view of this pervasive system for taking environmental factors in account, it is evident that the RCRA process should be considered the "functional equivalent" of NEPA's EIS requirement. NEPA Litigation - 1988 United States Supreme Court No National Environmental Policy Act cases were decided by the Supreme Court in 1988. United States Courts of Appeals: Selected Decisions Connor v. Burford, 836 F.2d 1521(9th Cir. 1988). Bob Marshall Alliance v. Hodel, 852 F.2d 1223(9th Cir. 1988). The question of when an agency must prepare an EIS for oil and gas drilling in national forests has produced conflicting interpretations of requirements under the National Environmental Policy Act in the Ninth and Tenth Circuit Courts of Appeals. In a 1987 case, Park County Resource Council, Inc. v. Department of Agriculture, the Court of Appeals for the Tenth Circuit held that the full development of lease areas cannot be predicted prior to oil exploration phase and that an EIS only need be prepared when site specific plans have been determined. The Court of Appeals for the Ninth Circuit, in two 1988 cases, has taken a different view. In Connor v. Burford and Bob Marshall Alliance v. Hodel, the Forest Service reviewed certain national forests to determine to what uses the forests would be classified. The Forest Service prepared environmental assessments (EAs) and recommended that large sections of these forest lands be leased for oil and gas development. Findings of No Significant Impact (FONSI) were issued based upon the assessment that the sale of the leases would have no significant effect on the environment. The Bureau of Land Management (BLM) then sold leases for oil and gas exploration and development. Some of the leases contained "no surface occupancy" (NSO) stipulations, which prohibit the lessee from engaging in any surface disturbing activity. Plaintiffs (several environmental groups and landowners) contended that the sale of the leases without the preparation of EISs violated NEPA as the lease sales constituted an irretrievable commitment of resources. The Forest Service claimed that the decision to file a FONSI was correct because the environmental impacts could not be assessed at the time of the sale of the leases because no plans for specific exploration or mineral development activities had yet been proposed. In addressing the issue of NSO leases the Connor court found that since these leases prohibited surface activity, any changes or modifications in the leases would trigger the requirement for the preparation of an EIS in later stages of development and therefore held that no EIS was required at the lease sale stage. However, both the Connor and Bob Marshall decisions distinguished NSO leases from non-NSO leases, following the holdings of the District of Columbia Circuit in Sierra Club v. Peterson. The court rejected the contention of the Forest Service that NEPA is satisfied by a process of "staged consultation" under which the effects of surface disturbing activity are analyzed as specific activities are proposed and that the activities of the applicants can be regulated at those stages. The Connor court noted that the agency does not have the power to prohibit the lease holder from acting, eliminating the possibility of selecting the "no action" alternative as required by the Council on Environmental Quality regulations. The court also rejected the government's contention that the activities of the applicants could be adequately regulated after the leases were issued. The court questioned whether the ability to subject such highly intrusive activities to reasonable regulation can reduce their effects to insignificance. Both decisions relied on NEPA's mandate that an EIS must be prepared before there is an irretrievable commitment of resources, and attempted to identify that commitment/no commitment stage by establishing the point at which the government loses its ability to prevent environmental degradation. The applicant in Bob Marshall, noting the apparent split between the Ninth and Tenth Circuits on the issue of when the EIS must be prepared, has filed petition for certiorari to the Supreme Court. Natural Resources Defense Council v. Hodel ___F.2d___ (C.A. D.C. 1988). The issue of the extent to which cumulative impacts must be examined arose in the context of Outer Continental Shelf (OCS) lease sales in Natural Resources Defense Council v. Hodel. The plaintiffs challenged the adoption of a Department of Interior 5 year leasing program (from 1987 to 1992) asserting that the EIS did not adequately examine the cumulative impacts of simultaneous OCS mineral development in California and Alaska on migratory species such as whales and salmon. Plaintiffs, various environmental organizations and coastal states, contended that the cumulative impact of simultaneous development would be greater than the sum of development in each area because migratory species will have to pass through all of the areas. The District of Columbia Court of Appeals agreed with the plaintiffs, citing Kleppe v. Sierra Club, and CEQ regulations which "specifically provide that an EIS should consider together actions that 'are interdependent parts of a larger action and depend on the larger action for their justification.'" The court quoted sections of the EIS under the subsection "cumulative impacts" and noted that only impacts within certain OCS areas or regions had been examined and not the impacts of simultaneous OCS development in different areas. Use of similar language in different sections of the EIS regarding different regions or species was also rejected by the court which said, "When the FEIS does address inter-regional cumulative impacts, it simply repeats the same boilerplate for each area, varying the language only slightly in each instance." The court then set out the following factors to be used to guide agencies in determining what would satisfy the requirements in NEPA for the assessment of cumulative impacts: (1) impacts of simultaneous development should be examined in a "single, coherent section rather than fragmented analysis by area;" (2) references to "scientific studies and other materials that supported the agency's decision" should be presented; and (3) "the examination and comparison of alternatives to simultaneous development that would mitigate any synergistic impacts on species, such as staggering development" should also be included. LaFlamme v. Federal Energy Regulatory Commission, 842 F.2d 1063(9th Cir. 1988) The requirement to assess cumulative impacts was also examined in LaFlamme v. Federal Energy Regulatory Commission. In LaFlamme, the Federal Energy Regulatory Commission (FERC) approved a permit for the construction of the Sayles Flat hydroelectric project on the American River in Northern California. FERC's FONSI was challenged by the plaintiffs who alleged that the EA did not adequately assess cumulative impacts of the water resources project. FERC in turn contended that their analysis of cumulative impacts was adequate because the EA for Sayles Flat had incorporated by reference a staff report on all American River hydroelectric projects. The court, however, pointed out that the staff report section on cumulative impacts was based on an EIS previously prepared for a related American River hydroelectric project which was limited to the impacts of proposed facilities in that project's area. The court held that the previously prepared EIS, and therefore the staff report, did not provide the "necessary comprehensive cumulative impact of all projects in the area, especially the Sayles Flat Project." The court cited language from CEQ's cumulative impact regulation and stated that such a narrow analysis of one project's impact on this area cannot possibly provide the necessary broad consideration of all past, present and reasonably foreseeable future actions required in the cumulative impact analysis. The court, noting that the previous project EIS represented only the initial development of water resources projects on the American River, indicated that each project would have to be examined for its own particular impacts, including cumulative impacts. By requiring that FERC examine each project and each impact individually as well as cumulatively, the court seemed to be rejecting the use of boilerplate language or analysis for separate parts of the EIS. Hudson River Sloop Clearwater Inc. v. Navy Department, 836 F.2d 760 (2nd Cir. 1988). The issue of segmentation was discussed in Hudson River Sloop Clearwater Inc. v. Navy Department, in which plaintiffs asserted that the Navy improperly "segmented" their plans for housing for Navy personnel from the EIS for the nearby dredging and pier construction for the proposed Staten Island homeport. In its EIS for the Staten Island homeport, the Navy had examined the environmental impact of the housing needed for its married personnel. Subsequently the Navy was advised by the New York State Department of Environmental Conservation that much of the housing site was designated as wetlands subject to state regulation. The Navy then issued its Record of Decision in which much of the previously planned housing was reduced, delaying the planning of additional housing until later. The district court had enjoined construction of the homeport, agreeing with the plaintiffs contention that the construction of the port facilities and the eventual construction of housing were connected actions under CEQ regulation 40 C.F.R. 1508.25(a)(1) and that the impacts of both actions should have been discussed in a single EIS. The appellate court disagreed, overturning the injunction placed on the Navy's construction of the port facilities by the district court. The court of appeals cited 1508.25(a)(1)(ii) in its analysis, stating that actions are connected if they, "[c]annot or will not proceed unless other actions are taken previously or simultaneously." The question, according to the court of appeals, was can "the operational aspects of the homeport proceed without the construction of family housing?" Noting the district court's finding that military necessity required the Navy to proceed with the project even without providing housing, the court found that the operational aspects of the homeport could proceed without the housing and that therefore the two were not "connected" under subsection 1508.25(a)(1)(ii). The court also briefly discussed whether the homeport and the facilities were connected under 1508.25(a)(1)(iii) which defines actions as connected if they are interdependent parts of a larger action and depend on the larger action for their justification. The court cited Taxpayers Watchdog Inc. v. Stanley, for the "proper test for interdependence," which is whether the action being contested has an independent utility. The court held that since the Navy was going to proceed with the port facilities with or without the housing, the port facilities had the requisite independent utility. The court however did not include a discussion of the Fourth Circuit's approach to segmentation cases as set out in Maryland Conservation Council Inc. v. Gilchrist. In Gilchrist, the court determined that an EIS drafted to evaluate the impacts of a highway that crossed a county park must contain an analysis of the impacts caused by the section that would eventually pass through the park. Gilchrist held that the sections of the highway outside the park could not go forward because their approval would "limit the choices of alternatives that are available to federal officials." The Gilchrist court reasoned that if investments in the highway route were made before the government official had considered an environmental analysis on the park section, the options open to the decision maker would diminish and at some point his consideration of the action would become a mere formality. While the Hudson Sloop case may have been decided similarly if the court had utilized the Gilchrist test, the fact that the court did not use it indicates that there may be different approaches between the circuit courts on the analysis required in segmentation cases. Save the Yaak v. Block, 840 F.2d 714(9th Cir. 1988). Both segmentation and cumulative impacts were discussed in the 9th Circuit decision, Save the Yaak v. Block. The Yaak River Road in western Montana runs through extensive lodgepole pine stands that have been infested by the mountain pine beetle. The Forest Service planned to reconstruct the road in five separate sections to help accelerate harvest of these trees to salvage as many as possible. The Forest Service drafted five different EAs for each of the road sections. Plaintiffs contended that the logging operations and the reconstruction of the road were "connected actions" under the CEQ regulations and therefore the Forest Service improperly segmented the logging operations by not assessing impacts of the logging operations in the EAs. The court agreed, finding "a clear nexus between the timber contracts and the improvement of the road." The court noted that even though the Forest Service had not characterized the road as a logging road, the testimony established that the purpose of the road was to make the logging activity safer and more efficient and that there was no other reason to reconstruct the road. The court quoted Thomas v. Peterson, for the applicable analysis that, "[T]he road would not be [reconstructed] but for the contemplated timber sales." While the court did not expressly use the "independent utility" test (for determining segmentation) used in Hudson Sloop, a similar "but for" analysis was utilized. That is, in Hudson Sloop, the court held that the homeport had an independent utility, apart from the housing and that therefore construction of the homeport did not depend on the construction of the housing. In Save the Yaak, the court indicated that but for the timber operations there would have been no road reconstruction and that therefore the road had no independent utility. In a separate section the Save the Yaak court addressed the closely related issue of whether cumulative impacts of the logging operations and the road construction "necessitates the preparation of an [EIS]." Noting the nexus established earlier in the decision, the court stated that the cumulative impact of these actions raises material issues of fact concerning the project's effect upon the human environment. The court then reversed the district court's summary judgment for the Forest Service, holding that a FONSI could not be issued where the cumulative impacts of the road and the logging had not been examined together. The court also addressed the issue of timing of the preparation of the environmental documents. The court stated that "timing is one of NEPA's central themes," and quoted 1502.5 which requires federal agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values." The court determined that because the EA had been prepared after the Forest Service had awarded the reconstruction contract, then the EA was not drafted in a timely fashion, "thereby seriously impeding the degree to which their planning and decisions could reflect environmental values." No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380(9th Cir. 1988). Whether NEPA analysis is an appropriate context for discussing the impacts of nuclear war was addressed in No GWEN Alliance of Lane County Inc. v. Aldridge. GWEN (Ground Wave Emergency Network) is an Air Force system of 300 foot radio antennas that are designed to send war messages during and after a nuclear war. The Air Force issued a generic EA for the entire project and site specific EAs for each antenna tower, none of which included a discussion of the environmental impact of nuclear war. The plaintiffs contended that these documents should have considered the environmental impact of nuclear war and that these impacts should be discussed in the EAs because of the possibility that deployment of GWEN "could reasonably result in nuclear war." The Air Force's first response was to contend that No GWEN's suit to compel a discussion of the environmental impact of nuclear war raised only non-justiciable political questions. The court disagreed, noting that the plaintiffs were not seeking a review of the merits of the decision to deploy GWEN, but instead wanted to insure that the Air Force complied with NEPA by considering all environmental effects of constructing GWEN. Since the plaintiffs were not attacking the Air Force's decision on the merits but instead were attacking the inadequacies of the decision making process, the court held that "a lawsuit challenging development of a defense installation on the grounds that the responsible agency did not discuss environmental impacts causally related the installation raises justiciable questions. The court, citing Weinberger v. Catholic Action of Hawaii and Concerned About Trident v. Rumsfeld, also pointed out that, there is no 'national defense' exception to NEPA." The court also considered the substantive issue of whether NEPA requires a discussion of the impact of nuclear war that could result because of deployment of GWEN. Plaintiffs contended that their own speculation that GWEN would promote nuclear war should be discussed alongside the Air Force's contention that GWEN would deter it. The court framed discussion of this issue as a question of whether there was a nexus between the installation of GWEN and the environmental impact of nuclear war. Citing Warm Springs Dam Task Force v. Gribble, the court compared nuclear war to an earthquake and stated that since both experts and laymen agreed that the damage caused by such events was so catastrophic, detailing the results of such events serves no useful purpose. The court then stated that, "Consequently, we hold that the nexus between construction of GWEN and nuclear war is too attenuated to require discussion of the environmental impacts of nuclear war in an environmental assessment or environmental impact statement." Natural Resources Defense Council v. U.S. Environmental Protection Agency, 859 F.2d 156 (D.C. Cir. 1988). The authority of an agency to impose conditions pursuant to NEPA was addressed in Natural Resources Defense Council v. U.S. Environmental Protection Agency. Several industry and environmental groups sought judicial review of regulations of the Environmental Protection Agency (EPA) dealing with conditions placed on permits granted under the National Pollution Discharge Elimination System permits under the Clean Water Act. Section 1371(c) of the Clean Water Act provides that the provision of federal financial assistance for the construction of publicly owned treatment works and the issuance of discharge permits to new sources are federal actions that require EPA to carry out the requirements of NEPA. Utilizing this provision, EPA outlined a system whereby it could subject NPDES permits to conditions not related to water quality. Industry groups challenged the validity of this system, including 40 C.F.R. Section 122.44(d)(9) which states that the Administrator of the EPA shall issue or condition NPDES permits, providing that new source NPDES permits shall "incorporate . . . appropriate requirements, conditions, or limitations . . . to the extent allowed by [NEPA] and section 511 of the CWA." EPA contended that NEPA authorizes the agency to make decisions based on environmental factors not expressly identified in the agency's underlying statute. The court agreed with this general proposition. EPA also argued that NEPA permits the agency not only to consider environmental factors, but also to act on these factors by imposing any condition necessary related to the environmental effects of the entire new facility. The court disagreed and held specifically that, "neither the Clean Water Act nor NEPA authorizes EPA's imposition of non-water quality permit conditions for NPDES permits." The court explained its holding by stating that "[a]ny action taken by a federal agency must fall within the agency's appropriate province under its organic statute(s)." The court emphasized that NEPA does instruct agencies to incorporate information concerning environmental impacts into its decisions. Thus, where the agency holds the authority to deny a source permit or impose certain types of conditions, that agency can take action "in the wake of its NEPA mandated review" by basing its actions on information or analysis set out in the NEPA documents. The court, therefore, did not limit an agency's authority to consider environmental impacts in its decisions but held only that NEPA does not expand the authority of an agency to make certain kinds of decisions or orders. Trends in NEPA Litigation CEQ's survey of NEPA litigation filed against federal agencies during 1986 and 1987 showed a continuation of the trend towards significantly lower numbers of cases than were filed during the first decade of NEPA implementation. Similarly, the number of injunctions issued against the government remained low, with only three injunctions issued based on cases filed during 1987. Individual and citizen groups and environmental groups were the most frequent plaintiffs during both 1986 and 1987. The Department of Transportation, Department of Interior, Department of Agriculture and the Corps of Engineers were the agencies most frequently sued as defendants. As is typical, the most common cause of action was the allegation that no EIS had been prepared for a proposed action which required an EIS; the second most common complaint for 1986 was that an EIS or an environmental assessment (EA) was inadequate. In 1987, the second most common complaint concerned the alleged inadequacy of an EA, pointing to the increased use by agencies of EAs and the concomitant increase in scrutiny which these EAs and Findings of No Significant Impact are receiving.