CASES AFFECTING THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
Agencies' Obligation to Comply with NEPA to "fullest
- Calvert Cliffs' Coordinated Committee v. Atomic Energy
Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942
FACTS: The court was asked to
review rules promulgated by the Atomic Energy Act on NEPA implementation. Although the
rules required applicants for construction permits and operating licenses to prepare their
own "environmental reports and required the AEC's regulatory staff to prepare its own
detailed statement of environmental costs, benefits, and alternatives, the rules did set
limits on how environmental issues would be considered in the Commission's decisionmaking
FINDINGS: This was one of the first
cases interpreting NEPA, and set the tone for all subsequent NEPA cases. The court made
several important points regarding NEPA and federal agency compliance with the statute:
- The general substantive policy in Section 101 of
NEPA is flexible. "It leaves room for a responsible exercise of discretion and may
not require particular substantive results in particular problematic instances."
- The procedural provisions in NEPA Section 102 are
not as flexible and indeed are designed to see that all federal agencies do in fact
exercise the substantive discretion given them.
- NEPA makes environmental protection a part of the mandate
of every federal agency and department. Agencies are "not only permitted, but
compelled, to take environmental values into account. Perhaps the greatest importance of
NEPA is to require [all] agencies to consider environmental issues just as they
consider other matters within their mandates."
- To insure that an agency balances environmental issues with
its other mandates, NEPA Section 102 requires agencies to prepare a "detailed
statement." The apparent purpose to the "detailed statement" is to aid in
the agencies' own decisionmaking process and to advise other interested agencies and the
public of the environmental consequences of the planned action.
- The procedural duties imposed by NEPA are to be carried out
by the federal agencies "to the fullest extent possible." "This language
does not provide an escape hatch for footdragging agencies; it does not make NEPA's
procedural requirements somehow 'discretionary'. Congress did not intend the Act to be a
paper tiger." NEPA's procedural requirements "must be complied with to the
fullest extent, unless there is a clear conflict of statutory authority."
- Section 102 of NEPA mandates a careful and informed
decisionmaking process and creates judicially enforceable duties. The reviewing courts
probably could not reverse a substantive decision on the merits, but if the decision were
reached procedurally without consideration of environmental factors--conducted fully and
in good faith--it is the responsibility of the courts to reverse.
- The AEC's interpretation of its NEPA responsibilities was
"crabbed" and made "a mockery of the Act." Section 102's
that the "detailed statement" 'accompany' a proposal through agency review
more than physical proximity and the physical act of passing papers to reviewing
officials. It is not enough that environmental data and evaluation merely
"accompany" an application through the review process but receive no
consideration from the hearing board as contemplated by the AEC regulations.
- The AEC improperly abdicated its NEPA authority by relying
on certifications by federal, state, and regional agencies that the applicant complied
with specific environmental quality standards. NEPA mandates a case-by-case balancing
judgment on the part of federal agencies; in each case, the particular economic and
technical benefits of an action must be weighed against the environmental costs.
Certification by another agency that its own environmental standards are satisfied
involves an entirely different kind of judgement and attend to only one aspect of the
problem--the magnitude of certain environmental costs. Their certification does not mean
that they found no environmental damage, only that it was not high enough to violate
applicable standards. The only agency in a position to balance environmental costs with
economic and technical benefits is the agency with the overall responsibility for the
- NEPA requires that an agency--to the fullest extent
possible--consider alternatives to its actions which would reduce environmental damage. By
refusing to consider requiring alterations of facilities (which received construction
permits before NEPA was enacted) until construction is completed, the AEC may effectively
foreclose the environmental protection envisioned by Congress.
- Delay in the final operation of the facility may occur but
is not a sufficient reason to reduce or eliminate consideration of environmental factors
under NEPA. Some delay is inherent in NEPA compliance, but it is far more consistent with
the purposes of the act to delay operation at a stage when real environmental protection
may come about than at a stage where corrective action may be so costly as to be
- Flint Ridge Development Co. v. Scenic Rivers
Association of Oklahoma, 426 U.S. 776 (1976)
FACTS: Plaintiffs challenged Department
of Housing and Urban Developments (HUD) failure to prepare an EIS prior to approving
the filing of a disclosure statement under the Interstate Land Sales Full Disclosure Act.
Under this act, developers are required to disclose information by filing with HUD a
statement of record regarding title of the land and conditions of the subdivision, among
other things. The statement of record becomes effective automatically on the 30th day
after filing, unless it is found to be materially incomplete or inaccurate.
FINDINGS: The Court held that NEPAs
EIS requirement is inapplicable to this case.
- While NEPAs instruction that all federal agencies
comply with the EIS requirement "to the fullest extent possible" is a deliberate
command that the duty NEPA imposes upon the agencies to consider environmental factors
be shunted aside in the bureaucratic shuffle, nevertheless NEPA recognizes that where a
clear and unavoidable conflict in statutory authority exists, NEPA must yield.
- The Disclosure Act does not give HUD discretion to suspend
the effective date of the proposed statement of record for such time as is necessary to
prepare an EIS.
- Natural Resources Defense Council v. Morton, 458
F.2d 827 (D.C. Cir. 1972)
FACTS: Secretary of the Interior Morton prepared an
EIS for proposed oil and gas lease sales off the coast of Louisiana. The EIS dealt
adequately with the environmental impacts of the proposed sale, and did discuss
modifications to the proposal to delete some of the tracks with higher environmental
- An EIS provides a basis for evaluation of the benefits of a
proposed project in light of its environmental risks and a comparison of the net balance
for the proposed project with the environmental risks presented by alternative courses of
- An agency must look at "reasonable" alternatives,
but this is not limited to measures which the agency itself can adopt. When the proposed
action is an integral part of a coordinated plan to deal with a broad problem, the range
of alternatives which must be evaluated is broadened. While Interior did not have
authority to undertake certain alternatives (such as elimination of oil import quotas),
such actions are within the purview of Congress and the President to whom the EIS goes. An
EIS is not only for the agency, but also for the guidance of others and must provide them
with the environmental effects of both the proposal and the alternatives for their
- The discussion of alternatives need not be exhaustive. What
is required is information sufficient to permit a reasoned choice of alternatives so far
as environmental aspects are concerned, including alternatives not within the scope of
authority of the responsible agency. Nor is it appropriate to disregard alternatives
merely because they do not offer a complete solution to the problem.
- Discussion of reasonable alternatives does not require a
"crystal ball" inquiry. The statute must be construed in the light of reason.
- The mere fact that an alternative requires legislative
implementation does not automatically establish it as beyond the domain of what is
required for discussion, particularly since NEPA was intended to provide a basis for
consideration and choice by the decisionmakers in the legislative as well as the executive
- Natural Resources Defense Council v. Callaway, 524
F.2d 79 (2d Cir. 1975)
FACTS: Suit challenging further dumping by the Navy
of polluted dredged spoil at the New London dumping site in Long Island Sound, claiming
(among other things) that the Navy had not looked at all reasonable alternatives.
FINDINGS: The content and scope of the discussion
of alternatives to the proposed actions depends upon the nature of the proposal. Although
there is no need to consider alternatives of speculative feasibility or alternatives which
could be changed only after significant changes in governmental policy or legislation, the
EIS must still consider such alternatives to the proposed action as may partially or
completely meet the proposal's goal and it must evaluate their comparative merits.
that the court's finding in NRDC v. Morton, above, that an alternative requiring a
change in legislation was "reasonable," turned on the fact that the EIS dealt
with a broad policy issue. In NRDC v. Callaway, the court indicated that for a
project-specific EIS, an alternative requiring a "significant" change in
legislation may not be "reasonable."]
- Marble Mountain Audubon Society v. Rice, 914 F. 2d
179 (9th Cir. 1990)
FACTS: After a forest fire in 1987, the Forest
Service began to plan the salvage and rehabilitation of the damaged area, and prepared a
draft and final EIS that considered the environmental impacts of nine alternative salvage
and harvest proposals. The alternative selected called for logging of some green timber as
well as the fire-killed timber and for the addition of six miles of logging roads.
Alleging that the final EIS failed to adequately consider the unique value of the area as
the only significant biological corridor between two wilderness areas, plaintiffs sought
declaratory and injunctive relief.
FINDINGS: The district court granted summary
judgment in favor of the Forest Service, stating that the NEPA claims were barred by
Section 312 of Pub. L. No. 101-121 (which denies judicial review of Forest Service plans
on the sole basis that the plans, in their entirety, are outdated) and, alternatively,
that the final EIS adequately addressed the biological corridor issue. The Ninth Circuit
reversed. Recognizing the "strong presumption in favor of judicial review of
administrative action" and "narrowly constru[ing]" Section 312's
prohibition against judicial review, the court found that the biological corridor issue
was not a generic issue that would enable plaintiffs to challenge the entire Timber
Management Plan for the Klamath National Forest in contravention of Section 312.
The court also concluded that, based on the record before
it, the Forest Service had not taken a "hard look" at the impact of the selected
salvage and harvest alternative on the biological corridor. The court found that the
Forest Service's conclusion that the preservation of a ½ mile corridor would be
sufficient was "without supporting documentation" and found "no
discussion" of the corridor issue in either of two underlying documents relied upon
by the Forest Service (a 1967 Multiple Use Plan and a 1974 Klamath National Forest Timber
Management Plan and accompanying EIS). Having issued an order enjoining any logging or
road building, the court remanded the case to the district court for further proceedings.
- Citizens Against Burlington v. Busey, 938 F.2d 190
(D.C. Cir. 1991), cert. denied, 502 U.S. 994, 112 S.Ct.616 (1992)
FACTS: The city of Toledo wanted to add a cargo hub
to one of its airports, with the objective that the addition would create thousands of new
jobs and added revenue to the local economy. The city's Port Authority submitted its
proposal to the FAA for approval, and then hired a consulting firm to prepare an EIS. The
EIS addressed only two alternative actions: approve the expansion, or not approve the
expansion. The FAA approved both the EIS and the expansion plan. Plaintiffs argued, inter
alia, that the FAA, in not assessing other reasonable alternatives, violated NEPA and
the CEQ regulations.
FINDINGS: The court stated that a court will uphold
an agency's definition of objectives as long as they are reasonable. Further, an agency
need follow only a rule of reason in preparing an EIS, and this rule of reason extends
both to which alternatives the agency must discuss, as well as the extent to
which it must discuss them. The dissent found this reasoning contra to CEQ's regulations,
noting that the FAA failed to examine all practical or feasible alternative, and it had
"the duty under NEPA to exercise a degree of skepticism in dealing with self-serving
statements from a prime beneficiary of the project."
- Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert.
denied, 412 U.S. 908 (1973)
FACTS: Challenge to a General Services
Administration (GSA) EA for construction of a jail and other facilities in New York City.
GSA issued an EA which described a number of environmental impacts and concluded that the
project was not an action significantly affecting the quality of the human environment.
- Determination of whether an EIS was required turns on
meaning of "significantly." Almost every major federal action, no matter how
limited in scope, has some adverse effect on the human environment. Congress could have
decided that every major federal action should be the subject of an EIS, but by adding
"significantly" Congress required that the agency find a greater environmental
impact would occur than from "any major federal action."
- CEQ guidelines suggest that an EIS should be prepared where
the impacts are controversial, referring not to the amount of public opposition, but to
where there is a substantial dispute as to the size, nature, or effect of the major
- Court said that in deciding whether a major federal action
will "significantly" affect the environment, an agency should be required to
review the proposed action in light of the extent to which the action will cause adverse
environmental effects in excess of those created by existing uses in the area affected by
it, and the absolute quantitative adverse environmental effects of the action itself,
including the cumulative harm that results.
- Agencies in doubtful cases will prepare EISs rather than
risk the delay and expense of protracted litigation on what is "significant."
- Agencies must affirmatively develop a reviewable
environmental record for the purposes of a threshold determination under § 102(2)(C).
Before a threshold determination of significance is made, the agency must give notice to
the public of the proposed major federal action and an opportunity to submit relevant
facts which might bear upon the agency's threshold decision.
- Hiram Clarke Civic Club v. Lynn, 476 F.2d 421 (5th
FACTS: Plaintiffs challenged a proposed low and
moderate income apartment project in Houston, Texas, arguing that the Department of
Housing and Urban Development (HUD) was barred from funding the project because the
had failed to prepare an EIS.
FINDINGS: The court concluded that HUD was not
required to file an EIS covering the proposed apartment project. According to the court,
the plaintiffs "have raised no environmental factors, either beneficial or adverse,
that were not considered by HUD before it concluded that this apartment project would
produce no significant environmental impact." Id. at 426.
Having made that ruling, the court went on to address the
plaintiffs' claim that HUD's determination of "significance" improperly focused
only on adverse environmental impacts, contrary to the CEQ Guidelines:
"[Plaintiffs] argue that NEPA requires that an agency
file an environmental impact statement if any significant environmental effects,
whether adverse or beneficial, are forecast. Thus, they argue, by considering only
effects HUD in effect did but one-half the proper investigation. We think this contention
raises serious questions about the adequacy of the investigatory basis underlying the HUD
decision not to file an environmental impact statement." Id. at 426-27
(emphasis in original).
Without amplification or example, the court expressed its
view that "[a] close reading of Section 102(2)(C) in its entirety discloses that
Congress was not only concerned with just adverse effects but with all potential
environmental effects that affect the quality of the human environment." Id.
at 427 (emphasis in original). Despite this, the court agreed that the project in question
was not a major federal action significantly affecting the quality of the human
- Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995), cert. denied, 116 S.Ct. 698 (1996)
FACTS: Plaintiffs challenged the Secretary of the
Interior's decision under the Endangered Species Act (ESA) to designate critical habitat
for a threatened or endangered species without complying with NEPA.
FINDINGS: Holding that NEPA does not apply to such
designations, the court found that ESA procedures have displaced NEPA requirements and
that ESA furthers the goals of NEPA without requiring an EIS. Apart from its
interpretation of ESA, the court also concluded that "NEPA procedures do not apply to
federal actions that do nothing to alter the natural physical environment." 48 F.3d
at 1505. To clarify this point, the court held that
"If the purpose of NEPA is to protect the physical
environment, and the purpose of preparing an EIS is to alert agencies and the public to
potential adverse consequences to the land, sea or air, then an EIS is unnecessary when
the action at issue does not alter the natural, untouched physical environment at
all." Id. (emphasis in original).
- Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996)
FACTS: Similar to Douglas County, plaintiffs
challenged a critical habitat designation that had been made without compliance with
FINDINGS: The court specifically referenced and
disagreed with the Douglas County decision from the 9th Circuit and held that ESA
procedures did not displace NEPA requirements, that there were "actual impact flows
from the critical habitat designation," and that compliance with NEPA will further
the goals of ESA.
With respect to its factual conclusion that there could be
impacts from the critical habitat designation, the court reiterated plaintiffs' claim that
the proposed designation "will prevent continued governmental flood control efforts,
thereby significantly affecting nearby farms and ranches, other privately owned land,
local economies and public roadways and bridges." The court characterized these
impacts as "immediate and the consequences could be disastrous." Further, the
court stated that:
"While the protection of species through preservation
of habitat may be an environmentally beneficial goal, Secretarial action under ESA is not
inevitably beneficial or immune to improvement by compliance with NEPA procedure...The
short- and long-term effects of the proposed governmental action (and even the
governmental action prohibited under the ESA designation) are often unknown or, more
importantly, initially thought to be beneficial, but after closer analysis determined to
be environmentally harmful."
- Friends of Fiery Gizzard v. Farmers Home Administration,
61 F.3d 501 (6th Cir. 1995)
FACTS: The Farmers Home Administration had prepared
an EA for the funding of a water impoundment and treatment project in Tracy City,
Tennessee. On the basis of the EA, the agency concluded that the project would have no
significant environmental impacts. However, the agency also concluded that "'[t]he
project will have a positive impact on the living environment of the residents of the
area'" because they would be "'provided with a dependable, sanitary water
supply.'" Id. at 503, quoting the environmental assessment. Plaintiffs sued,
claiming that the existence of "significant" beneficial impacts required the
preparation of an EIS.
FINDINGS: Affirming the lower court decision, the
court held that if an agency reasonably concludes on the basis of an environmental
assessment that the project will have no significant adverse environmental consequences,
an EIS is not required. Id. at 504-505. The court based its conclusion on its
reading of NEPA and the CEQ regulations.
- One of the central purposes of NEPA is to "promote
efforts which will stimulate the health and welfare of man" (citing U.S.C. § 4321).
The health and welfare of the residents of Tracy City will not be "stimulated"
by the delays and costs associated with the preparation of an EIS "that would not
even arguably be required were it not for the project's positive impact on health and
welfare." Id. at 505.
- The CEQ regulations implementing NEPA direct federal
agencies to make the NEPA process more useful to decisionmakers and the public, to reduce
paperwork and the accumulation of extraneous background data, and to emphasize real
environmental issues and alternatives (citing 40 CFR § 1500.2(b). "It was in keeping
with this philosophy that the environmental assessment process was devised to screen
projects where the preparation of an expensive and time-consuming environmental impact
statement would serve no useful purpose."
- However, the court did differentiate between projects where
the only "significant" impacts were beneficial ones (the Fiery Gizzard case) and
projects where there were "significant" beneficial and adverse impacts, but that
"on balance" the impacts were beneficial:
"This is not to say, of course, that the benefits of
the project would justify a finding of no significant impact if the project would also
produce significant adverse effects. Where such adverse effects can be predicted, and the
agency is in the position of having to balance the adverse effects against the projected
benefits, the matter must, under NEPA, be decided in light of an environmental impact
Defining "Major Federal
Minnesota Public Interest Research Group v. Butz,
498 F.2d 1314 (8th Cir. 1974)
FACTS: Plaintiffs sought to enjoin timber sales in
the Boundary Waters Canoe Area until the Forest Service completed an EIS on the management
of the area. The Forest Service argued that the phrase "major federal actions
significantly affecting the quality of the human environment" creates two tests:
first it must be determined whether there is a major federal action, and next, if there is
a major federal action, whether the impact of that action on the environment is major. The
Forest Service asserted that timber sales were not "major federal actions."
- The court concluded that the term "major federal
action significantly affecting the quality of the human environment" involved only
"To separate the consideration of the magnitude of
federal action from its impact on the environment does little to foster the purposes of
the Act, i.e., to 'attain the widest range of beneficial uses of the environment without
degradation, risk to health and safety, or other undesirable and unintended consequences.'
By bifurcating the statutory language, it would be possible to speak of a 'minor federal
action significantly affecting the quality of the human environment,' and to hold NEPA
inapplicable to such an action....the activities of federal agencies cannot be isolated
from their impact on the environment."
- The court also rejected the Forest Service's conclusion
that there was no effect on the "human" environment from the timber sales
because there was no evidence that human users of the area had ever seen a timber sale:
"This appears to be too restrictive a view of what
significantly affects the human environment. We think NEPA is concerned with indirect
effects as well as direct effects. There has been increasing recognition that man and all
other life on this earth may be significantly affected by actions which on the surface
Judicial Review of Agency Actions
- Kleppe v. Sierra Club, 427 U.S. 390 (1976)
FACTS: Plaintiffs claimed that federal
officials could not allow further development of coal reserves on federal land without a
comprehensive EIS on the entire region. Court held that there was no proposal for
regional development and thus that there was nothing to prepare an EIS on.
- The mere contemplation of a certain action is not
sufficient to require an EIS.
- § 102 may require a comprehensive EIS in certain
situations where several proposed actions are pending at the same time. Thus when
several proposals for actions which have cumulative or synergistic environmental impacts
on a region are pending concurrently before an agency, their environmental consequences
must be considered together.
- NEPA does not contemplate that a court should substitute
its judgment for that of the agency as to the environmental consequences of its
actions. "The only for a court is to insure that the agency has taken a 'hard
look' at environmental consequences."
- Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, 435 U.S. 519 (1978)
FACTS: Challenge to licensing of two nuclear
power plants by NRC. In one case NRC had left to another subsequent proceeding the
question of nuclear waste disposal; in another, NRC did not explore energy conservation as
FINDINGS: NEPA does set forth significant
substantive goals for the Nation, but its mandate to the agencies is essentially
procedural. It is to insure a fully informed and well-considered decision, not
necessarily a decision the judges of the court of appeals would have reached if they had
been members of the decisionmaking bodies.
- Strycker's Bay Neighborhood Council v. Karlen, 444
U.S. 223 (1980)
FACTS: At issue was a plan by HUD to
redesignate a site in New York City for a proposed low-income housing project. The
court of appeals had ordered HUD to find a solution to the problem of low income housing
in a different manner.
FINDINGS: NEPA does not require an agency to
elevate environmental concerns over other, admittedly legitimate considerations. Nor
do the courts have the power to order a shift in priority. HUD considered the
environmental consequences of its decision; NEPA requires no more.
- Baltimore Gas and Electric Co. v. Natural Resources
Defense Council, 462 U.S. 87 (1983)
FACTS: In a generic rulemaking to evaluate
the environmental effects of the nuclear fuel cycle for nuclear power plants, the Nuclear
Regulatory Commission (NRC) issued a rulemaking that assumed "zero release" of
radiological effluents from nuclear wastes sealed in a permanent repository. Under
this rule, NRC licensing boards would assume, for purposes of NEPA, that the permanent
storage of certain nuclear wastes would have no significant environmental impact and thus
would not affect the decision whether to license a nuclear power plant. Plaintiffs
challenged the rule as arbitrary and capricious and violative of NEPA.
FINDINGS: The Court held that the generic
rulemaking complied with NEPA's requirements of consideration and disclosure of
- NEPA has twin aims. First, it places upon an agency
the obligation to consider every significant aspect of the environmental impact of a
proposed action. Second, it ensures that the agency will inform the public that it
has indeed considered environmental concerns in its decisionmaking process.
- Congress, however, did not require agencies to elevate
environmental concerns over other appropriate considerations. Rather, it only
required that the agency take a "hard look" at the environmental consequences
before taking a major action.
- The role of the courts is simply to ensure that the agency
has adequately considered and disclosed the environmental impact of its actions and that
its decision is not arbitrary and capricious. "It is not our task to determine
what decision we, as Commissioners, would have reached. Our only task is to
determine whether the Commission has considered the relevant factors and articulated a
rational connection between the facts found and the choice made."
- Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 109 S.Ct 1835 (1989) (companion case to Marsh v. Oregon Natural Resources
FACTS: A Forest Service study designated a
particular national forest location as having high potential for a major ski resort.
Methow Recreation applied for a special use permit to develop and operate such a resort on
the site. The FS prepared an EIS on the project, including the effects of various
levels of development on wildlife and air quality and outlined steps to mitigate adverse
effects. Plaintiffs brought suit challenging FS decision to issue special use
- NEPA does not impose a substantive duty on agencies to
mitigate adverse environmental effects or to include in an EIS a fully developed
mitigation plan. Although the EIS requirement and NEPA's other 'action-forcing'
procedures implement the statute's sweeping policy goals by ensuring that agencies will
take a "hard look" at environmental consequences and by guaranteeing broad
public dissemination of relevant information, it is well-settled that NEPA itself does not
impose substantive duties mandating particular results. "Other statutes may
impose substantive environmental obligations on federal agencies, but NEPA merely
prohibits uninformed--rather than unwise--agency action."
- One important ingredient of an EIS is the discussion of
steps that can be taken to mitigate adverse environmental effects. The requirement
that an EIS contain a detailed discussion of possible mitigation measures flows from the
language of NEPA and the CEQ regulations. Omission of a reasonably complete
discussion of possible mitigation measures would undermine the "action-forcing"
function of NEPA. Without such a discussion, the public would be unable to
adequately evaluate the severity of the adverse effects. "There is a
fundamental distinction, however, between a requirement that mitigation be discussed in
sufficient detail to ensure that environmental consequences have been fairly evaluated, on
the one hand, and a substantive requirement that a complete mitigation plan be actually
formulated and adopted, on the other."
- CEQ's amendment of its regulations to delete the
requirement for a "worst case analysis" was valid. The worst case
requirement was not a codification of prior NEPA case law. The regulations
promulgated by CEQ are entitled to substantial deference. It is particularly
appropriate where, as here, there appears to have been good reason for the change (i.e.,
eliminating the distortion of the decisionmaking process by overemphasizing highly
Small Federal Handle Issue
Macht v. Skinner, 916 F.2d 13 (D.C. Cir. 1990)
FACTS: The District of Columbia Court of
Appeals examined the extent to which federal involvement in a non-federal project may
"federalize" the project for purposes of NEPA compliance. In this case, the
Maryland Mass Transit Administration decided to build a 22.5 mile light rail line near
Baltimore, to be financed solely by state and local governments.
There was, however, some federal involvement. First, the
state needed to obtain a Section 404 permit from the Army Corps of Engineers for 3.58
acres of wetlands. Further, using federal funds, Maryland began consideration of three
extensions to the rail line. The federal grant, from the Urban Mass Transit Administration
(UMTA), was provided to the state for assistance in preparing alternative analyses and
draft EISs for the contemplated extensions.
The plaintiffs sued the federal agencies, claiming that
there was sufficient federal involvement in the rail project to constitute a "major
federal action" requiring compliance with NEPA. Affirming the lower court, the court
of appeals held that neither the Army Corps wetlands permit nor the UMTA grant was enough
to transform the entirely state-funded project into a federal action.
FINDINGS: With respect to the UMTA grant
for the preliminary environmental analyses, the court stated that "NEPA does not
require UMTA to prepare an EIS until it proposes or decides to participate in a project
that will affect the environment." Addressing the Army Corps permit issue, the court
noted that the plaintiffs "correctly assert that federal involvement in a nonfederal
project may be sufficient to 'federalize' the project for purposes of NEPA."
The court characterized the issue as "whether the
federal participation in the project is so substantial that the state should not be
allowed to go forward until all the federal approvals have been granted in accordance with
NEPA." In this case, the court found that the Army Corps had discretion only over a
negligible portion of the entire project, that the only federal involvement in the 22.5
mile state portion of the project was the wetlands permits, and that the state had not
entered into a financial partnership with the federal government. "NEPA therefore
provides no basis for enjoining Maryland's construction of the Light Rail Project."
Blue Ocean Preservation Society v. Watkins, 745
F. Supp. 1450 (D. HI. 1991)
FACTS: The State of Hawaii developed the
Hawaii Geothermal Project (HGP) consisting of four phases: 1) exploration and testing of
geothermal resources; 2) research regarding the feasibility of transporting the power via
underwater cables; 3) a program involving the drilling of exploration wells; 4)
construction of separate geothermal power plants. The Department of Energy (DOE) provided
funds for the first 2 phases; in 1988, Congress appropriated an additional $5 million for
use in phase 3, the first of three such appropriations anticipated from Congress over the
next three years. Congress stated in a Conference Report that while phase 3 was
"research," not a major federal action subject to NEPA, DOE should nevertheless
earmark some of the funds for an EA/EIS for the project. In 1990, plaintiffs sued DOE
seeking to compel preparation of an EIS, and to enjoin further federal participation in
the HGP until the EIS was completed.
FINDINGS: The court rejected Congress'
characterization of phase 3, and held that phases 3 and 4 were connected actions which
must be considered in one EIS. The court further held that the "research work"
contemplated by phase 3 "alone easily satisfies the statutory standards for 'major
federal action' based simply on the extent of federal funding."
- Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir.
FACTS: This involved a challenge to an
Army Corps' decision to prepare an EA on a §404 permit to fill wetlands for a development
on Galveston Island (Texas). By all accounts, further development affecting those wetlands
was being planned, but those plans were not yet pending before the Corps. In addition, it
was acknowledged that this particular proposal would not have significant effects--the
Corps said that it had to go no further. The court disagreed.
FINDINGS: The court makes a distinction
between the requirement to analyze cumulative actions and the requirement for an analysis
of cumulative impacts. Specifically, with respect to cumulative actions, the court noted
that CEQ scoping regulations require connected, cumulative, and similar actions to be
considered together in the same EIS--where proposals up for decision are functionally or
economically related, those proposals must be considered in one EIS. "If proceeding
with one project will, because of functional or economic dependence, foreclose options or
irretrievably commit resources to future projects, the environmental consequences of the
projects should be evaluated together."
Note that only actual proposals (40 CFR § 1508.23) may be
considered sufficiently related to require preparation of a NEPA document. This means only
actions or proposals that are ready for decision, e.g., several §404 permits pending
before the Army Corps in one geographic region. Unlike the obligation to include
cumulative actions in one EIS for analysis and decision, the obligation to address
cumulative impacts is not limited to actual proposals.
With respect to cumulative impacts, the court noted that
the CEQ regulations require analysis of direct, indirect, and cumulative impacts and held
that in this context, the impacts were not limited to those from actual proposals, but
must also include impacts from actions which are merely being contemplated (i.e., are not
yet ripe for decision). However, the court noted that contemplated actions must be
"reasonably foreseeable," not speculative and not off in the distant future.
What a cumulative impact analysis must identify:
- the area in which the effects of the proposed project will
- the impacts that are expected in that area from the
- other past, present, and reasonably foreseeable actions
that have or are expected to have impacts in the area;
- the impacts or expected impacts from these other actions;
- the overall impact that can be expected if the individual
impacts are allowed to accumulate.
- National Wildlife Federation v. Federal Energy
Regulatory Commission, 912 F.2d 1471 (D.C. Cir. 1990)
FACTS: The Court of Appeals for the
District of Columbia Circuit upheld a license issued by FERC for the first phase of a
hydroelectric plant in Arkansas. The EIS prepared for the project looked only at the
environmental impacts of Phase I, although construction of Phase II, while not inevitable,
was reasonably foreseeable. The plaintiffs had challenged the issuance of the license for
Phase I, asserting that FERC violated NEPA by not assessing the potential impacts of Phase
II in deciding whether to approve Phase I.
FINDINGS: The court reasoned that Phase
II of the project was not yet proposed and that "NEPA merely requires an agency to
consider all other proposed actions that may, along with the proposed action in issue,
have a cumulative or synergistic effect on an environment."
NOTE that this case is an example of a
court confusing the requirement to consider all connected or cumulative actions together
in the same comprehensive EIS (see 40 CFR § 1508.25(a), with the requirement to assess
the cumulative impacts of the proposal and other reasonably foreseeable future actions
(see 40 CFR §§ 1508.7, 1508.8, and 1508.25(c)). See the discussion of
Alexander, above, for a good discussion. As the Fritiofson court noted, only actual
proposals, as defined in the Council on Environmental Quality (CEQ) regulations (see 40
CFR § 1508.23), need be considered together in one EIS. Once the scope of the EIS has
been determined, however, the agency is required to look at cumulative impacts "of
other past, present, and reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) or person undertakes such other actions." 40 CFR § 1508.7.
Supplementing NEPA Documents
Marsh v. Oregon Natural Resources Council, 490
U.S. 360, 109 S.Ct. 1851 (1989) (companion case to Robertson v. Methow Valley
FACTS: Plaintiff non-profit organization
brought suit to enjoin construction of a dam, partly because the Army Corps of Engineers
did not prepare a second supplemental EIS to address concerns raised in two new reports.
One report claimed that the dam would adversely affect downstream fishing; the other
indicated it would cause greater downstream turbidity.
FINDINGS: The Court, noting the
Corps formal and documented review of the two reports, held that a supplemental EIS
- An agency has a duty to continue reviewing environmental
effects of a proposed action even after its initial approval. "It would be
incongruous with...the Acts manifest concern with preventing uninformed action, for
the blinders to adverse effects, once unequivocally removed, to be restored prior to the
completion of agency action simply because the relevant proposal has received initial
approval." Id. at 371.
- New information does not always compel an agency to prepare
a supplemental EIS. "[A]n agency need not supplement an EIS every time new
information comes to light after the EIS is finalized. To require otherwise would render
agency decisionmaking intractable, always awaiting updated information only to find the
new information outdated by the time a decision is made." Id. at 373.
- An agency must take a hard look at possible new
environmental effects and apply a rule of reason when it makes a decision regarding EIS
supplementation. "An agency must apply a rule of reason....NEPA does
require that agencies take a hard look at the environmental effects of their
planned action, even after a proposal has received initial approval....Application of the
rule of reason thus turns on the value of the new information to the still pending
decisionmaking process. In this respect the decision whether to prepare a supplemental EIS
is similar to the decision whether to prepare an EIS in the first instance: If there
remains major Federal actio[n] to occur, and if the new information will
affec[t] the quality of the human environment in a significant manner or to a
significant extent not already considered, a supplemental EIS must be prepared."
at 361, 373, 374.
- Agencies may rely on their own experts in the face of
conflicting views. "When specialists express conflicting views, an agency must have
the discretion to rely on the reasonable opinions of its own qualified experts even if, as
an original matter, a court might find contrary views more persuasive." Id. at
- Reviewing courts must apply the arbitrary and capricious
standard of the Administrative Procedure Act. "[R]eview is controlled by the
arbitrary and capricious standard of § 706(2)(A) [of the APA]....[I]n making
the factual inquiry concerning whether an agency decision was arbitrary or
capricious, the reviewing court must consider whether the decision was based
on a consideration of the relevant factors and whether there has been a clear error of
judgment. This inquiry must be searching and careful, but the
ultimate standard of review is a narrow one." Id. at 375, 376, 378,
quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
- Although reviewing courts grant a degree of deference to
any agencys decision, they should carefully review the record. "[I]n the
context of reviewing a decision not to supplement an EIS, courts should not automatically
defer to the agencys express reliance on an interest in finality without carefully
reviewing the record and satisfying themselves that the agency has made a reasoned
decision based on its evaluation of the significance - or lack of significance - of the
new information." Id. at 378.
Other courts have developed additional criteria when
reviewing an agencys decision not to supplement an EIS:
- A new statute or regulation does not necessarily constitute
a change in the proposed action or new information in the relevant sense. National Indian
Youth Council v. Watt, 664 F.2d 220 (10th Cir. 1981), citing Concerned Citizens v.
Secretary of Transportation, 641 F.2d 1, 6 (1st Cir. 1981).
- Mere passage of time does not compel supplementation.
Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1036 (2d Cir. 1983);
Coker v. Skidmore, 941 F.2d 1306 (5th Cir. 1991).
- If an agency decides not to prepare a supplemental EIS, it
should carefully explain its reasoning, providing more than one sentence addressing
supplementation. Warm Springs Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980);
Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983).
Extraterritorial Application of
- Greenpeace USA v. Stone, 748 F. Supp. 749 (D. HI.
FACTS: The district court of Hawaii
examined the extraterritorial application of NEPA to the removal, transportation, and
destruction of chemical munitions stored in the Federal Republic of Germany (FRG). Under
agreements entered into by President Reagan and President Bush, and pursuant to a
congressional mandate, the Department of the Army undertook a joint plan with the West
German Army to remove chemical weapons from their storage site in the FRG, and to
transport them to Johnston Atoll, a U. S. territory in the Pacific Ocean, for disposal in
the Johnston Atoll Chemical Agent Disposal System.
The Army prepared separate EISs with respect to the
construction and operation of the Johnston Atoll facility, the disposal of solid and
liquid wastes that the facility would produce, and the disposal of the munitions stockpile
from the facility in the FRG. The Army also prepared a Global Commons Environmental
Assessment pursuant to Executive Order No. 12114 (Environmental Affects Abroad of Major
Federal Actions), in which it analyzed the environmental impacts of the shipment of the
munitions from an FRG port to Johnston Atoll. No environmental analysis, under either NEPA
or the executive order, was conducted for the movement of the munitions within the FRG.
Plaintiffs filed suit against the Department of the Army
to enjoin movement of the munitions from the FRG to Johnston Atoll on the grounds that the
Army violated NEPA by failing to prepare a comprehensive EIS covering all aspects of the
transportation and disposal of the FRG stockpile.
FINDINGS: In ruling on plaintiffs' motion
for a preliminary injunction, the district court stated that "it is not convinced
that NEPA applies extraterritorially to the movement of munitions in Germany or their
transoceanic shipment to Johnston Atoll." The court recognized that "the
language of NEPA indicates that Congress was concerned with the global environment and the
worldwide character of environmental problems," but that actions under NEPA
"should be taken 'consistent with the foreign policy of the United States.'"
"Congress intended to encourage federal agencies to consider the global
impact of domestic actions and may have intended under certain circumstances for NEPA to
apply extraterritorially." However, "the court must take into consideration the
foreign policy implications of applying NEPA within a foreign nation's borders to affect
decisions made by the President in a purely foreign policy matter."
With respect to the need to assess the environmental
impacts of its actions within the FRG, and in the circumstances of this case, the court
"Imposition of NEPA requirements to that operation
would encroach on the jurisdiction of the FRG to implement a political decision which
necessarily involved a delicate balancing of risks to the environment and the public and
the ultimate goal of expeditiously ridding West Germany of obsolete chemical
Further the court found that "[t]he transoceanic
movement of the munitions is a necessary consequence of the stockpile's removal from West
Germany," and thus "implicates many of the same foreign policy concerns which
affect the movement of the weapons through West Germany."
For the transoceanic phase of the action, the Army did
prepare an environmental assessment under Executive Order No. 12114. Although the court
"cannot conclude, as defendants would suggest, that Executive Order 12114 preempts
application of NEPA to all federal agency actions taken outside the United States,"
the court was persuaded, again under the circumstances of this case, that NEPA did not
require the Army to consider the global commons portion of the action in the same EIS that
covers the Johnston Atoll facility.
Based on these findings, the court concluded that
plaintiffs had not demonstrated a likelihood of success on the merits sufficient for the
imposition of a preliminary injunction. Plaintiffs motion for such injunctive relief was
- Environmental Defense Fund v. Massey, 986 F.2d.
528 (D.C. Cir. 1993)
FACTS: Plaintiffs challenged the National
Science Foundation's plans to incinerate waste at McMurdo Station in Antarctica, arguing
that NEPA applies extraterritorially and thus that NSF should have prepared an EIS.
Plaintiffs further alleged that NSF violated E.O. 12114, requiring the preparation of
environmental assessments for US actions which have an impact overseas.
FINDINGS: The Court of Appeals overturned
the earlier decision in Environmental Defense Fund v. Massey, 772 F.Supp. 1296
(D.D.C. 1991) which had held that, despite NEPA's broad mandates, there is no clear
congressional intent that NEPA should apply beyond the borders of the US and that NEPA did
not apply to NSF's decision to build waste incinerators in Antarctica. In this case, the
Court of Appeals held that the application of NEPA to federal actions is not limited to
actions occurring or having effects in the United States. Rather, NEPA is designed
"to control the decisionmaking process...not the substance of agency decision"
that takes place almost exclusively in the United States. The court found that the
presumption against extraterritorial application did not apply in this case and held that
NEPA did apply to NSF actions in the Antarctic. The court relied upon Antarcticas
unique status as a place which was not a sovereign territory.
- Lujan v. National Wildlife Federation, 497 U.S.
871, 110 S. Ct. 3177 (1990).
FACTS: The United States Supreme Court
was asked to confer standing on plaintiffs who had alleged in affidavits the use of public
lands "in the vicinity" of land that was the subject of 2 out of 1,250 Bureau of
Land Management (BLM) orders. These orders, plaintiffs claimed, would open public lands up
to mining activities, thereby destroying their natural beauty. Plaintiffs challenged all
of the 1,250 BLM orders, claiming violations of the National Environmental Policy Act
(NEPA) and the Federal Land Policy and Management Act (FLPMA).
The district court, ruling on defendants' motion for
summary judgment, found that plaintiffs had no standing to seek judicial review.
Specifically the court held that even if the affidavits claiming use of lands "in the
vicinity" of lands that were the subject of two BLM orders were sufficient to
challenge those two particular orders, they were not sufficient to allow a challenge to
each of the 1,250 individual orders. The Court of Appeals for the District of Columbia
Circuit reversed, finding the affidavits sufficient to confer standing to challenge the
two individual orders and that standing to challenge those orders conferred standing to
challenge all 1,250 orders.
FINDINGS: Reversing the Court of Appeals
in a 5-4 decision authored by Justice Scalia, the Supreme Court acknowledged that neither
NEPA nor FLPMA provides a private right of action for violations of its provisions. Rather
an injured party must seek relief under the Administrative Procedure Act (APA). To
demonstrate standing under APA, a plaintiff must identify some final agency action that
affects him or her and must show he or she has suffered a legal wrong because of the
agency action or is adversely affected by that action within the meaning of a relevant
statute. To be "adversely affected within the meaning of a statute," a plaintiff
must be within the "zone of interests" sought to be protected by the statutory
provision that forms the basis of the complaint.
Using this test of standing, the Court found that
plaintiffs' interest in recreational use and aesthetic enjoyment of the federal lands were
within the "zone of interests" protected by NEPA and FLPMA. However the Court
concluded that plaintiffs, by simply claiming use "in the vicinity" of immense
tracts of land managed by BLM, had not shown they would be "adversely affected"
by the BLM actions. Moreover the Court found that plaintiffs were attempting to challenge
BLM operation of its land management program generally, not a final agency action in
particular. Given these findings, the Court ruled that plaintiffs had not set forth
"specific facts" in their affidavits sufficient to survive defendants' motion
for summary judgment.
A dissent authored by Justice Blackmun noted that the
showing required to overcome a motion for summary judgment is more extensive than that
required for a motion to dismiss, but concluded that the allegations in the affidavits
were adequate to defeat a summary judgment motion. The dissent emphasized that the
question was not whether plaintiffs had demonstrated standing, but whether the affidavits
before the district court established that a genuine issue existed for trial.
- Foundation on Economic Trends v. Department of
Agriculture, 943 F.2d. 79, (D.C. Cir. 1991)
FACTS: Plaintiffs challenged the lack of
an EIS for a "germplasm" program within the Department of Agriculture. Their
standing to sue was based upon harm to their ability to disseminate information or
FINDINGS: The court stated that it had
never sustained an organization's standing in a NEPA case solely on the basis of
informational injury, i.e., damage to the organization's interest in
disseminating the environmental data that an EIS could be expected to contain. "If
such injury alone were sufficient, a prospective plaintiff could bestow standing upon
itself merely by requesting the agency to prepare the detailed statement NEPA
contemplates, which in turn would prompt the agency to engage in 'agency action' by
failing to honor the request. The court concluded that plaintiffs had failed to allege
specific agency action that injured them and triggered a violation of NEPA.
- Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.
FACTS: Plaintiffs challenged the U.S.
Forest Services Amended Land and Resource Management Plan for Ouachita National
Forest on the grounds that NEPA had been violated. Plaintiffs did not complain of a
particular action, but rather environmental injury based on the plan alone.
FINDINGS: The court found plaintiffs
lacked standing to sue, citing three requirements that must be met to establish standing
under Lujan. According to the court, plaintiffs must show: (1) they have suffered
"injury in fact," (2) a causal connection between the injury and the conduct
complained of that is "fairly...trace[able] to the challenged conduct of the
defendant," and (3) that it is "likely" (as opposed to merely
"speculative") that the injury is redressable by a decision favorable to the
The court held that, while complaints of environmental and
aesthetic harms are sufficient to lay the basis for standing (citing Sierra Club v.
Morton, 405 U.S. 727,734 (1972)), alleging an injury to a cognizable interest is not
enough. Plaintiffs must make an adequate showing that the injury is actual or certain to
ensue. Assertions of potential future injury do not satisfy the injury-in-fact test.
The court found that the Forest Service plan was a general
planning tool but did not dictate any particular site-specific action causing
environmental injury of which the plaintiffs could complain. The court would not confer
standing to challenge the plan per se.
Functional Equivalence Doctrine
In a series of cases, courts have found that EPAs
activities in furtherance of various environmental statutes are the "functional
equivalent" of compliance with NEPA and therefore EPA is not required to comply with
NEPA in those circumstances. The following cases have found EPA actions to be the
functional equivalent of NEPA compliance:
Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd
Cir. 1972), cert. denied, 409 U.S. 1125 (1973) (EPA need not comply with NEPA
prior to its actions under the Clean Air Act)
Maryland v. Train, 415 F.Supp. 116 (D. Md. 1976)
(EPA need not comply with NEPA prior to its actions under the Ocean Dumping Act)
Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986), cert.
denied, 108 S.Ct. 145 (1987) (EPA need not comply with NEPA prior to its actions
under the Federal Insecticide, Fungicide, and Rodenticide Act)
Alabamians for a Clean Environment v. EPA, 871
F.2d 1548 (11th Cir. 1989) and Alabama ex rel. Siegelman v. EPA, 911 F.2d 499
(11th Cir. 1990) (EPA need not comply with NEPA prior to its actions under the Resource
Conservation and Recovery Act)
Western Nebraska Resources Council v. EPA, 943
F.2d 867 (8th Cir. 1991) (EPA need not comply with NEPA prior to its actions under the
Safe Drinking Water Act)
Courts have found functional equivalency based on three
- The agencys organic statute must provide
"substantive and procedural standards that ensure full and adequate consideration of
environmental issues." Environmental Defense Fund v. Environmental Protection
Agency, 489 F.2d 1247, 1257 (D.C. Cir. 1973).
- The agency must afford public participation before a final
alternative is selected. Maryland v. Train, 415 F.Supp. 116, 122 (D. Md.
- The action must be undertaken by an agency engaged
primarily in the examination of environmental issues. Warren County v. North
528 F.Supp. 276, 286 (E.D.N.C. 1981).
- Courts have declined to apply the doctrine to any agency
other than EPA, including departments that have substantial environmental
responsibilities: Texas Committee on Natural Resources v. Bergland, 573 F.2d
208 (5th Cir. 1978) (does not apply to U.S. Forest Service); Jones v. Gordon,
F.Supp. 7, 13 (D. Alaska 1985), affd in part, revd in
792 F.2d 821 (9th Cir. 1986) (does not apply to National Marine Fisheries Service).
- CEQ NEPA Regulations: Andrus v. Sierra Club, 442
U.S. 347 (1979)
In this case, the Supreme Court agreed with CEQ's
interpretation of NEPA with respect to whether EISs were required for appropriations
requests. The Court described CEQ's regulations as a "single set of uniform,
mandatory regulations applicable to all federal agencies." In addition, the Court
said that "CEQ's interpretation of NEPA is entitled to substantial deference."
- CEQ's Emergency Provision: Valley Citizens' for a Safe
Environment v. Vest, D. Mass. May 6, 1991
FACTS: In 1987, Westover Air Force Base
issued an EIS to evaluate the likely effects that the presence and operation of C-5A
transport planes would have on the environment. Pursuant to the EIS, night flights were
prohibited, yet in September 1990, the Air Force began to fly the planes in and out on a
24-hour schedule, due to the events relating to Operation Desert Storm. CEQ determined
that the developing situation in the Middle East constituted an emergency within the
meaning of its regulations, thus allowing the Air Force to operate the flights. See 40 CFR
§ 1506.11. Plaintiffs challenged both CEQ's authority to allow such arrangements in an
emergency, as well as the application of the regulation to the situation at Westover.
FINDINGS: The court upheld CEQ's
authority to issue the emergency regulation and its application to Westover. The Court
first noted that under § 102 of NEPA requires compliance "to the fullest extent
possible," indicating that an EIS is not mandatory in all circumstances. Thus, the
Court noted that "...before a federal agency takes environmentally significant
action, emergency circumstances may make completion of an EIS...unnecessary." The
Court also held that the decision by CEQ and the Air Force to deem the Westover situation
an emergency was reasonable, given the military's operational and scheduling difficulties
during "the hostile and unpredictable" Persian Gulf crisis.
- Disposition of Federal Property/Scope of Analysis: Conservation
Law Foundation v. General Services Administration, 707 F. 2d. 626 (1st Cir. 1983)
This case concerned the preparation of an EIS by GSA for
the disposal of excess property under the Federal Property and Administrative Services
(FPAS) Act. The court held (1) that disposal of excess federal property is a major federal
action requiring the preparation of an EIS, (2) that the EIS must discuss the
environmental effects of potential uses of the property by a new owner in order to permit
a reasoned choice between retention or disposal of each parcel, and (3) that GSA is not
required to obtain development plans from the party whose bid GSA intends to accept and to
supplement the EIS because GSA has no power to see that the implementation plans are ever
implemented. The court also held that GSA is not required under either NEPA or the FPAS
act to consider environmental factors in the initial choice of buyers.
- Scope of Analysis/"Psychological Stress": Metropolitan
Edison Co. v. People Against Nuclear Energy (PANE), 460 U.S. 766, 103 S.Ct. 1556
FACTS: Plaintiffs challenged NRC decision
not to address the psychological health and community well-being of residents of the area
surrounding the Three Mile Island nuclear power plant in its NEPA analysis of the restart
of that facility.
FINDINGS: The Court held that NEPA did
not require NRC to consider the psychological health damage from the risk of a nuclear
accident to residents near the nuclear plant that restarting the plant would cause.
- NEPA does not require an agency to assess every impact of
its proposed action, but only the impact on the physical environment. Although NEPA states
its goals in terms of sweeping terms of human health and welfare, these goals are the ends
that Congress has chosen to pursue by means of protecting the physical environment.
- NEPA does not require agencies to evaluate the effects of
risk. The term "environmental impact" in NEPA section 102(2)(C) includes a
requirement of a reasonably close causal relationship between a change in the physical
environment and the effect at issue. The risk of an accident is not an effect on the
- Classified Information: Weinberger v. Catholic Action
of Hawaii/Peace Education Project, 454 U.S. 139, 102 S.Ct. 1917 (1981)
FACTS: Plaintiffs sued to compel
preparation of an EIS for alleged plans to store nuclear weapons in a proposed facility on
Hawaii. The Navy had prepared an environmental assessment on the construction of
facilities for weapons storage; the facilities were capable of storing nuclear weapons but
any plans for storing nuclear weapons at those facilities were classified. The District
Court concluded that NEPA applied to the Navys actions, but given the national
security provisions of the Atomic Energy Act and the Navys own regulations, the Navy
had complied with NEPA to the fullest extent possible. The Court of Appeals disagreed and
required the agency to prepare and release a "Hypothetical EIS" with regard to
the operation of a facility capable of storing nuclear weapons.
FINDINGS: The U.S. Supreme Court
overturned the Court of Appeals decision, finding that a "hypothetical" EIS was
a creature of judicial cloth and not mandated by any statutory or regulatory provisions.
Recognizing the twin aims of NEPA (injecting environmental considerations into federal
agency decisionmaking and informing the public that the agency has considered
environmental concerns in its decisionmaking), the Court stated that the two goals were
compatible but not necessarily coextensive. "Thus, § 102(2)(C) contemplates that in
a given situation a federal agency might have to include environmental considerations in
its decisionmaking process, yet withhold public disclosure of any NEPA documents, in whole
or in part, under the authority of a [Freedom of Information Act] exemption." The
Court concluded that the Navy must consider environmental consequences in its
decisionmaking process, even if it is unable to meet NEPAs public disclosure goals
by virtue of FOIA exemption 1 (national security).
- Readability Issue: Oregon Environmental Council v.
Kunzman, 614 F.Supp. 657 (D. Ore. 1985)
FACTS: Debate over sufficiency of a USFS
EIS for the suppression and eradication of gypsy moths
FINDINGS: Worst case analysis required
under § 1502.22 was a mandatory part of the EIS, but was not "readable." One of
NEPA's purposes is to inform the public of possible environmental consequences of actions.
Section 1502.28 requires that EISs be "readable"--this requirement is not
trivial. Court invalidated EIS on that ground. Agency has a duty to provide the public
with comprehensive information regarding environmental consequences of a proposed action
and to do so in a readily understandable manner.
- Environmental Assessments: Sierra Club v. Watkins,
808 F.Supp. 852 (D.D.C. 1991)
FACTS: Plaintiffs challenged the adequacy
of an EA prepared by the Department of Energy (DOE) for the importation of spent nuclear
fuel rods from Taiwan to the United States.
FINDINGS: The court found the EA to be
inadequate, despite finding that plaintiffs had failed to demonstrate that the proposed
action would have a significant environmental impact and upholding the agencys
finding of no significant impact. The court premised its decision on a discussion of the
purpose and function of EAs:
- The court relied on that portion of the CEQ regulations
that states that an EA serves to aid an agencys compliance with NEPA when no EIS is
necessary (40 CFR § 1508.9(a)(2)) and on § 102(2)(E) of NEPA which requires agencies to
"study, develop and describe appropriate alternatives to recommended courses of
action in any proposal which involves unresolved conflicts concerning alternative uses of
- The court noted that the examination of alternatives was
bounded by the rule of reason and that the level of analysis should be commensurate with
the severity of impacts. However, the court found the agencys choice of alternatives
and analysis of cumulative risks of radiation exposure to be inadequate.