US History/US History (Bureau Development Inc.)(1991).ISO/dp/0139/01393.txt

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$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}
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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.