Table Of Contents introduction 2


"Immeasurable" effects of proposed action



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"Immeasurable" effects of proposed action: Environmental assessment's use of the term "immeasurable" to describe increases in cumulative watershed effects caused by timber sale did not indicate that short-term adverse impacts on the watershed were "uncertain," so as to require an Environmental Impact Statement (EIS) under NEPA; term "immeasurable" reflected Forest Service's conclusion that any effects would be so negligible that they could not be measured. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). Environmental Protection Information Center v. U.S. Forest Service, 451 F.3d 1005, 36 Envtl. L. Rep. 20120 (9th Cir. 2006)

Risks reasonably foreseeable: Risk of accidental ballistic missile explosion at submarine base was not reasonably foreseeable, so as to require preparation of environmental impact statement (EIS) under NEPA; Navy studied the risk of an explosive accident occurring during missile loading and unloading operations and determined the risk of any accident occurring during these operations to be less than one in one million, and that risk of the mishap leading to an explosion was between one in 100 million and one in one trillion. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq.; 40 C.F.R. §§ 1502.16, 1508.8(b). Ground Zero Center for Non-Violent Action v. U.S. Dept. of Navy, 383 F.3d 1082, 34 Envtl. L. Rep. 20100 (9th Cir. 2004)

Although court gives considerable deference to an agency's decision regarding whether to prepare an environmental impact statement (EIS) under National Environmental Policy Act (NEPA), the agency must (1) accurately identify the relevant environmental concern, (2) take a hard look at the problem in preparing its environmental assessment (EA), (3) make a convincing case for its finding of no significant impact, and (4) show that even if a significant impact will occur, changes or safeguards in the project sufficiently reduce the impact to a minimum. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). New York v. Nuclear Regulatory Com'n, 681 F.3d 471 (D.C. Cir. 2012)

Under NEPA, not every agency decision requires an environmental impact statement (EIS); if it is unclear whether an action will significantly affect the quality of the human environment agencies may prepare an environmental assessment (EA). National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1501.4(a, b). Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010).

Purpose of an environmental assessment is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement (EIS); thus, preparation of an EA leads either to a finding of no significant impact (FONSI), or to a finding that an EIS is required. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers, 105 F. Supp. 2d 953 (S.D. Ind. 2000)

Worst-case scenarios: An environmental impact statement (EIS) need not include a worst-case scenario to comply with NEPA. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Edwardsen v. U.S. Dept. of Interior, 268 F.3d 781 (9th Cir. 2001)

Level of detail: An environmental impact report (EIR) must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project; analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible. Gray v. County of Madera, 167 Cal. App. 4th 1099, 85 Cal. Rptr. 3d 50 (5th Dist. 2008)

§ 5.5. Segregation of projects; cumulative impacts



Four-part test: To determine whether a single project is improperly segmented into multiple parts to escape application of the National Environmental Policy Act (NEPA) to some of its segments, four-part test asks whether the proposed segment: (1) has logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity to consider alternatives; and (4) does not irretrievably commit federal funds for closely related projects. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 63 Env't. Rep. Cas. (BNA) 1833 (5th Cir. 2007)

NEPA does not require an agency conducting an Environmental Impact Statement (EIS) or Environmental Assessment (EA) to perform a separate analysis of alternatives that are not significantly distinguishable from alternatives actually considered, or that have substantially similar consequences. National Environmental Policy Act of 1969, § 102(E), 42 U.S.C.A. § 4332(E). Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dept. of Interior, 608 F.3d 592 (9th Cir. 2010)

§ 6. Exploration of alternatives and impacts

Once the project scope of the EIS is determined, the acting agency must determine the range of alternatives and impacts to be considered. Alternatives considered in an EIS must include a "no action" alternative, other reasonable courses of action, and mitigation measures not included in the proposed action. Impacts that must be considered include direct, indirect, and cumulative impacts.

An EIS must present the various alternatives, including the proposed action and the environmental impacts from each alternative, in a comparative fashion that sharply defines the issues and provides a clear basis for choice among options by the decisionmaker and the public. The EIS must "rigorously explore and objectively evaluate all reasonable alternatives," and if the agency eliminates any alternative from detailed study, regardless of who submitted it, the agency must briefly discuss in the EIS why that alternative was not considered with the others. Included in the EIS must be "substantial treatment" of each alternative, reasonable alternatives outside the jurisdiction of the acting agency, the no-action alternative, the agency's preferred alternative, if any, and any other appropriate mitigation measures not in the proposed action or alternatives.

The affected environment must also be succinctly described in the EIS. The impacts from the various alternatives must be presented in a form that allows for the comparison of alternatives as to their scientific bases and environmental consequences. The impacts that must be discussed include:



  • Direct effects and their significance

  • Indirect effects and their significance

  • Possible conflicts between the proposed action and any jurisdiction's land use plans for the area

  • Energy requirements and conservation potential of various alternatives and mitigation measures

  • Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures

  • Urban quality, historic and cultural resources, and the design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures

  • Means to mitigate adverse environmental impacts (if not previously covered)47 The persons responsible for preparing the EIS, together with a description of their expertise, experience, and professional disciplines, must be included.48

Cases:

An environmental impact statement (EIS) cannot be found wanting simply because the agency failed to include every alternative device thought conceivable by the mind of man, but existence of a viable but unexamined alternative renders an environmental impact statement inadequate. National Environmental Policy Act of 1969, § 102(C), 42 U.S.C.A. § 4332(C). Oregon Natural Desert Ass'n v. Bureau of Land Management, 531 F.3d 1114 (9th Cir. 2008)

The range of reasonable alternatives an agency must consider in developing an environmental assessment (EA) under NEPA depends on the nature and scope of the proposed action; an agency may reject an alternative without detailed discussion so long as it considered the alternative and provided an appropriate explanation as to why it was eliminated. National Environmental Policy Act of 1969, § 102(2)(E), 42 U.S.C.A. § 4332(2)(E). Cloud Foundation v. U.S. Bureau of Land Management, 802 F. Supp. 2d 1192 (D. Nev. 2011)

Although an agency's obligation to consider alternatives under an environmental assessment (EA) is a lesser one than under an environmental impact statement (EIS), NEPA requires that alternatives be given full and meaningful consideration, whether the agency prepares an EA or an EIS. National Environmental Policy Act of 1969, § 102(2)(E), 42 U.S.C.A. § 4332(2)(E). Northwest Environmental Defense Center v. U.S. Army Corps of Engineers, 817 F. Supp. 2d 1290 (D. Or. 2011)



Reasonable alternatives: While reasonable alternatives are to be considered in determining the adequacy of an environmental impact statement (EIS), every potentiality need not be evaluated, as the duty of an agency to prepare an EIS does not require it to engage in remote and speculative analysis. W.S.A. 1.11. Clean Wisconsin, Inc. v. Public Service Com'n of Wisconsin, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768 (2005)

§ 7. Public notice, comment, and hearing


The procedural route for preparation of an EIS generally follows this formula: scoping, draft EIS, public notice and comment period, public hearing, and final EIS with the final decision. After preparing a draft EIS, the agency must obtain the comments of any other federal agencies that have jurisdiction or special expertise with any of the environmental impacts, and the agency must request the comments of appropriate state and local agencies, affected Indian tribes, and any agency that has requested receipt of draft impact statements of that kind. If an applicant for a federal permit or license is the triggering factor for the EIS process, that applicant must be given the draft EIS and can also submit comments. Further, comments must be requested from the general public and actively solicited from persons and organizations who may be interested or affected, such as environmental groups. The CEQ regulations also provide for public notice of the draft EIS and any scheduled hearing on it. Public meetings or hearings on the proposed action will often be governed by the requirements of the statutes that the agency is operating under. Within those restraints, the CEQ regulations specify the method of giving public notice, and provide for public hearings and the solicitation of information from the public, as well as for making the draft EIS available for free to members of the public, or at not more than the actual cost of copying it.

§ 8. Finalization of EIS


Once a draft EIS has gone through the notice and comment process,54 the agency must prepare a final EIS, which will include an assessment of and responses to the comments that were made. Possible responses include modifying the proposed action or alternatives; developing and evaluating new alternatives; supplementing, improving, or modifying the analysis in the EIS; and making factual corrections. The agency must also explain why any comments not responded to in these ways do not warrant a response, such as their obvious unreasonableness.55
With finalization of the EIS, the agency decisionmaker is supposed to have the tools at hand to fully analyze the environmental impacts of the proposed action. After consideration of those impacts, a final determination on the proposal is made.
Cases:
Final environmental impact statement (FEIS) must provide a basis for (1) evaluation of the benefits of the proposed project in light of its environmental risks, and (2) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action; existence of a viable but unexamined alternative renders an (EIS) inadequate. 32 C.F.R. § 989.8(b). Davis Mountains Trans-Pecos Heritage Ass'n v. U.S. Air Force, 249 F. Supp. 2d 763 (N.D. Tex. 2003)
§ 9. Supplemental EIS
Even after an EIS is completed and a proposed action has been implemented, the acting agency may have a duty to prepare a Supplemental EIS (SEIS) under certain circumstances. NEPA makes no mention of a SEIS process, but the CEQ regulations mandate a SEIS when there are substantial changes in the proposed action, or when significant new circumstances or information arise. The Supreme Court has approved of these SEIS regulations. Another court has determined that although it does not mention the subject, NEPA requires the preparation of a SEIS, because substantial project changes by themselves may amount to a "major" federal action significantly affecting the quality of the human environment.
The courts have normally judged whether a SEIS is required by how much of a change in the original project has occurred. For example, the Fifth Circuit determined that a 50-percent increase in the land needed to build the Tennessee-Tombigbee Waterway, together with other large changes, was significant and substantial enough to require a SEIS. In a case that involved new information about a project, the Seventh Circuit held that "the extent to which the new information presents a picture of the likely environmental consequences associated with the proposed action not envisioned by the original EIS" is what must be evaluated in order to determine if the changes are substantial enough to warrant a SEIS. The same court stated that a SEIS is not necessary "unless the new information provides a seriously different picture of the environmental landscape such that another hard look is necessary."
Cases:

An agency need only supplement an environmental impact statement (EIS) required under NEPA for proposed agency action if a new circumstance or new information is significant, and determining significance is a factual question requiring technical expertise. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.; 40 C.F.R. §§ 1502.9(c)(1)(ii), 1508.27(b)(7). Habitat Educ. Center, Inc. v. U.S. Forest Service, 673 F.3d 518 (7th Cir. 2012).

Under National Environmental Policy Act (NEPA), an agency must prepare a supplemental assessment if the agency makes substantial changes in the proposed action that are relevant to environmental concerns; when the relevant environmental impacts have already been considered earlier in the NEPA process, no supplement is required. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1502.9(c)(1)(i). New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683 (10th Cir. 2009)

Supplemental environment impact statement (SEIS) reports may be required under NEPA if the new information shows that remaining government action will affect the quality of the human environment in a significant manner or to a significant extent not already considered in the original EIS. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 32 C.F.R. § 651.40; 40 C.F.R. § 1502.9(c)(1). Chemical Weapons Working Group v. U.S. Dept. of Defense, 655 F. Supp. 2d 18 (D.D.C. 2009).

Federal action is "controversial," as may require preparation of supplemental environmental impact statement (SEIS), when substantial questions are raised as to whether action may cause significant degradation of some human environmental factor, or there is substantial dispute about size, nature, or effect of action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq.; 40 C.F.R. § 1508.27. Sierra Club v. U.S. Dept. of Transp., 310 F. Supp. 2d 1168 (D. Nev. 2004)

§ 10. Judicial review of agency decisions under NEPA



F

or many years, the federal courts were split as to whether substantive agency decisions under NEPA were subject to judicial review and reversal. The issue had been one of whether NEPA required an agency, once it considered the environmental impacts of a proposed action, to modify the action or adopt a less harmful alternative. In Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, the leading case for many years on judicial review under NEPA, the Eighth Circuit reviewed the adequacy of an EIS on a dam project, and decided that the Administrative Procedure Act (APA) and NEPA's legislative history required substantive judicial review of NEPA decisions. The court explained that NEPA was intended to effect substantive changes in decisionmaking, and that under NEPA, the federal courts have an obligation to review substantive agency decisions on the merits. Most other circuit courts addressing the issue agreed with this analysis of NEPA. The Tenth Circuit, however, disagreed.


Although NEPA makes strong policy statements about the responsibility of federal agencies to protect the environment, the actual commands of the statute involve only the procedure of identifying and considering the environmental impacts of a proposed action and its alternatives. In 1989, the United States Supreme Court finally made it absolutely clear that NEPA provides no substantive mandates for overturning an agency decision, finding it "now well settled that NEPA itself does not mandate particular results but simply prescribes the necessary process."
Because NEPA contains no enforcement provisions and compliance with the statute must be determined under the APA's standards, federal courts usually apply that section of the APA referring to agency action that is "without observance of procedure as required by law." Unlike the cases focusing on whether NEPA contains substantive mandates, the courts have always been fairly uniform on the standard of review for compliance with NEPA's procedural mandates. Attempting to conduct a "strict inquiry" in NEPA cases, the courts have generally decided that the determination whether an agency has met NEPA's procedural requirements is governed by a "rule of reason" standard. That standard requires a reviewing court to take a "hard look" at whether the agency took a "hard look" at the environmental consequences of the proposed action and has "engaged in reasoned decisionmaking." The procedural mandates of NEPA are subject to a "strict standard of compliance."
Cases:
Agency's decision not to prepare environmental impact statement (EIS) can be set aside only upon showing that it was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.A. § 706(2)(A); National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. § 1501.4. Department of Transp. v. Public Citizen, 124 S. Ct. 2204, 159 L. Ed. 2d 60, 58 Env't. Rep. Cas. (BNA) 1545, 26 Int'l Trade Re. (BNA) 1097, 34 Envtl. L. Rep. 20033 (U.S. 2004)
In light of purpose of environmental impact statement (EIS) of informing agency and public about potential adverse ecological effects and about availability, if any, of less harmful alternatives prior to final decision on fate of particular project or rule, courts do not review challenges to adequacy of EIS under standard of mathematical exactitude, but under standard of reasonableness. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997)

Deference is not owed to an agency's scientific or technical expertise when the agency has completely failed to address some factor, consideration of which was essential to making an informed decision. National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005)



Rule of reason: Supreme Court must assess a challenged environmental impact statement (EIS) in light of the "rule of reason," which requires an EIS to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project, rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible. W.S.A. 1.11. Clean Wisconsin, Inc. v. Public Service Com'n of Wisconsin, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768 (2005)

§ 10.5. Standard of review

Court does not require the agency in its environmental assessment (EA) under NEPA to compile an exhaustive examination of each and every tangential event that potentially could impact the local environment; such a task is impossible, and never-ending. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq. Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012)

Under NEPA, in reviewing an Environmental Impact Statement (EIS), a court must not substitute its judgment for that of the agency, but rather must uphold the agency decision as long as the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Navajo Nation v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007)



Standard of review: Court gauges adequacy of environmental impact statement (EIS) under "rule of reason" that does not materially differ from "arbitrary and capricious" review. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002)

In reviewing the adequacy of an environmental impact statement (EIS), Court of Appeals determines whether there is a reasonable, good faith, objective presentation of the topics, such that it fosters both informed decision-making and informed public participation. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1508.14. Forest Guardians v. U.S. Forest Service, 495 F.3d 1162 (10th Cir. 2007)



Rule of reason: A reviewing court tests an environmental impact statement (EIS) under a "rule of reason" standard of review requiring the EIS to contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a hard look at environmental factors and to make a reasoned decision. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Colorado Off-Highway Vehicle Coalition v. U.S., 505 F. Supp. 2d 808 (D. Colo. 2007)

Court may not require agencies to elevate environmental concerns over other, admittedly legitimate considerations; courts should require full compliance with National Environmental Policy Act (NEPA), in order that agencies will be fully aware of the impact of their decision, however, in doing so, courts should not "fly speck" environmental impact statements, but rather, courts should be guided by a rule of reason. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. City of Shoreacres v. Waterworth, 332 F. Supp. 2d 992 (S.D. Tex. 2004)

§ 11. Proving and challenging EIS sufficiency, generally
In order for an EIS to be found sufficient, the courts generally require that the agency include three things in the EIS process: (1) "full disclosure" of the proposal's environmental impacts, (2) a "good-faith effort" to consider environmental values, and (3) compliance with NEPA § 102 requirements. Meeting these requirements means that the EIS must contain an explanation of its inquiry, analysis, and reasoning, and must not be vague and conclusory. The scientific data and other information must be presented in a fashion that will give the general public full disclosure of the proposed action's environmental consequences.
If an agency ignores or does not adequately consider a significant environmental impact, its EIS may well be deemed insufficient. A lack of reasonable alternatives and mitigation measures could likewise invalidate an EIS. The burden of proof for a party challenging an EIS is to show that alternatives, mitigation measures, significant impacts, or environmental consequences were not given a sufficiently "hard look" by the agency, or were not fully disclosed to the public. The remedy for a successful challenge to an EIS is a court order requiring the preparation of a new EIS or of a supplemental EIS, if a SEIS would adequately correct the errors in, or examine the changed circumstances since, the original EIS.
Cases:

Future hypotheticals: Purely speculative possibility that, if dredge and fill permit were issued for construction of ten-berth terminal for cargo and cruise ships on undeveloped land adjacent to shipping channel, river might in future have to be deepened to accommodate larger vessels that were expected to traverse the ocean in future was not one which the Army Corps of Engineers was obligated to consider in assessing environmental impacts of issuing permit under the National Environmental Policy Act (NEPA). National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. City of Shoreacres v. Waterworth, 420 F.3d 440, 60 Env't. Rep. Cas. (BNA) 2068, 35 Envtl. L. Rep. 20162 (5th Cir. 2005)

Reliance on stale scientific evidence is sufficient to require reexamination of environmental impact statement. City of Carmel-by-the-Sea v United States DOT (1996, CA9 Cal) 95 F3d 892, 96 CDOS 6847.

To provide sufficient analysis of environmental impacts under NEPA, environmental impact statement (EIS) must consider cumulative impacts applicable to agency action under consideration. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1508.7. Lands Council v. Cottrell, 731 F. Supp. 2d 1028 (D. Idaho 2010), report and recommendation adopted, 731 F. Supp. 2d 1074 (D. Idaho 2010)

§ 11.5. Applying the hard look standard

In reviewing decision under National Environmental Policy Act (NEPA) to forego preparation of an environmental impact statement (EIS), court looks to whether the agency has: (1) taken a "hard look" at the potential impact of its actions; (2) considered all of the relevant factors in its decision; and (3) provided an adequate statement of reasons to explain why a project's impacts are insignificant. 5 U.S.C.A. § 706(2)(A); National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq. Alaska Wilderness League v. Kempthorne, 548 F.3d 815 (9th Cir. 2008)

NEPA does not contain substantive environmental standards and guidelines, nor does Act mandate that agencies achieve particular substantive environmental results. It establishes action-forcing procedures that require agencies to take hard look at environmental consequences; Act also prohibits uninformed, rather than unwise, agency action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Center for Biological Diversity v. U.S. Forest Service, 349 F.3d 1157, 57 Env't. Rep. Cas. (BNA) 1449 (9th Cir. 2003)

NEPA does not require an agency to elevate environmental concerns over other appropriate considerations; rather, it requires the agency to take a "hard look" at environmental consequences before acting. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers, 105 F. Supp. 2d 953 (S.D. Ind. 2000)

Agency must make convincing case as to why environmental impact statement (EIS) is not necessary if it so decides after preparation of environmental assessment (EA); in any event, whether issuing EA or EIS, the agency's hard look must encompass thorough investigation into environmental impacts of agency's action and candid acknowledgment of risks that those impacts entail. National Environmental Policy Act of 1969, § 102(C), 42 U.S.C.A. § 4332(C); 40 C.F.R. § 1508.9. Coalition to Preserve McIntire Park v. Mendez, 862 F. Supp. 2d 499 (W.D. Va. 2012) (applying federal law)

NEPA is a procedural environmental statute, which does not require agencies to elevate environmental concerns over other appropriate considerations, rather NEPA requires only that federal agency take a "hard look" at potential environmental effects of major federal action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Pennaco Energy, Inc. v. U.S. Dept. of Interior, 266 F. Supp. 2d 1323 (D. Wyo. 2003)



II. Elements of Proof
§ 14. Proof as to necessity of EIS; Checklist
Evidence as to the following facts and circumstances should be adduced by the plaintiff in an action challenging a federal agency's failure to prepare an environmental impact statement (EIS), on the ground that an EIS is required under the National Environmental Policy Act (NEPA).

  • Project's Status as a "Major Federal Action" Requiring an EIS [§§ 2, 4, 9, 12]



  • Existence of a federal nexus

    • — A federal permit, lease, or approval is required

    • — Actual proposal from a federal agency

    • — Funding or financial assistance from any federal source

    • — Federal agency oversight of a state program

    • — Federal planning or funding of the state or local program that has control over the proposed action

    • — Federal agency action taken on the proposal

    • — Amount of federal agency control and discretion over the proposed action

    • — Statutory authority (whether used or not) that a federal agency has over the proposed action

    • — Adjudication by a federal agency

    • — Rulemaking by a federal agency

    • — Proposal for legislation by a federal agency



  • What the impacts may be to differentiate between "major" and "minor"

    • — Extent of federal participation

    • — Time when federal participation becomes necessary

    • Cumulative impacts

    • — Indirect impacts

    • — Geographical area impacted and how it is impacted

    • — Number of people impacted and how they are impacted

    • — Number of wildlife species, individuals, or habitats impacted and how they are impacted

    • — Amount of federal money involved

    • — Amount of federal planning involved

    • — Amount of time required of federal agency

    • — Amount of other resources required of federal agency



  • Whether Federal Action Has a "Significant Impact" on the Environment So That an EIS is Required [§§ 2, 4, 9, 12, 18– 22]



  • Determination of significance

    • — Adverse impacts of the proposed action

    • — Existing environmental conditions of the area to be impacted

    • — Relative change in existing environmental conditions of the area to be impacted if the proposed action is completed

    • — Unique features and characteristics of the area to be impacted

    • — Degree that impacted area is in a natural state and previously unaltered by man

    • — Cumulative impacts

    • — Indirect impacts

    • — Impacts on public health and safety

    • — Uncertainty of the possible impacts

    • — Controversial nature of the possible impacts

    • — Thoroughness of agency determination that impact would not be significant

    • — Impacts on the quality of life of those affected

    • — The proposed action may lead to other later actions that will impact the area involved

    • — Extent of aesthetic effects

    • — Probability of environmental risk

    • — Consequences from that environmental risk

§ 15. Proof as to sufficiency of EIS; Checklist
Evidence as to the following facts and circumstances should be adduced by the plaintiff in an action challenging the sufficiency of an environmental impact statement (EIS) prepared by a federal agency under the National Environmental Policy Act (NEPA).

  • Failure to consider reasonably foreseeable impacts [§§ 2, 5– 7, 11, 23– 36]

    • — Inadequate description and consideration of the affected environment

    • — Cumulative impacts not considered by agency

    • — Indirect impacts not considered by agency

    • — Lack of thoroughness on part of agency

    • — Degree that agency took a "hard look" at the possible impacts

    • — Lack of proper scoping in defining the extent of the EIS

    • — Full extent of the impacts

    • — Agency segmentation of one project into several smaller projects to minimize effects of any one part

    • — Agency failure to follow accepted scientific guidelines for collection of data

    • — Insufficient data

    • — Failure to consider data submitted by outside parties

    • — Ignoring sound data

    • — Use of improper methodology or technology

    • — Ineffective risk analysis

    • — Lack of support for the EIS's statements in the administrative record

    • — Nondisclosure of incomplete or unavailable information

    • — Inadequate response to comments from public and other agencies



  • Failure to consider reasonable alternatives [§§ 2, 5– 7, 11, 23– 36]

    • — Predisposition to adopt initially proposed, preferred course of action

    • — Narrowness of the range of alternatives

    • — Lack of true alternatives

    • — Failing to consider reasonable alternatives submitted by outside parties

    • — Incomplete scoping of alternatives at start of EIS process

    • — Insufficient consideration of the environmental impacts of alternatives

    • — Inadequate discussion of the "no action" alternative



  • Lack of mitigation measures

    • — Failure to consider mitigation measures

    • — Failure to include reasonable mitigation measures in the consideration process

— Inadequacy of the discussion of mitigation measures
Memorandum Asking for Preliminary Injunction and Commencement of Supplemental EIS Studies by Eva Conner.
The Caernarvon Freshwater Diversion Project commenced releasing freshwater from the Mississippi River into the Breton Sound area in 1991 for the purposes of stabilizing salinity for oyster production and supplying sediment to maintain and build marshland. The United States Army Corps of Engineers (Corps) completed their study of the feasibility of this project in 1984, including an Environmental Impact Statement (EIS) required by the National Environmental Policy Act of 1970 (NEPA). Their studies and rationale for building the diversion failed to take into account newly studied detrimental effects that nutrient-rich river water has on the root development of marshland flora. Plaintiffs contend that the Caernarvon Diversion should be preliminarily enjoined until the Corps completes a Supplemental Environmental Impact Statement (SEIS) to address this heretofore unexamined threat.

Although there is no action recognized within NEPA itself to challenge the Corps, US Federal Courts have established that citizens, environmental groups, and corporations can sue federal agencies for NEPA violations using the Administrative Procedure Act (APA). The APA prohibits agencies from actions that are “without observance of procedure as required by law.” 5 U.S.C.A. § 706(2)(D). The Corps has not observed NEPA’s procedural requirements by failing to account for the harmful effects that nutrient-rich river water has on marshland root structures and this suit is brought under authority of that Act.

NEPA prohibits uninformed, rather than unwise, agency action. Robertson v. Methow Valley Citizens Council, 490 US 332 (1989). The Corps has made exactly such an uninformed decision by allowing the operation of the Caernarvon diversion without knowing of the potential harm involved. Although standards for EIS challenges differ across federal circuits, the United States Court of Appeals for the Fifth Circuit has held that a challenge can be sustained if it “raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary.” Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 1051 (5th Cir. 1985). That is, whether it “provides a seriously different picture of the environmental landscape such that another hard look is necessary.” Id. Additionally, the Supreme Court of the United States expressed approval of 40 CFR § 1502.9(c)(1)(ii), a regulation issued by the Council on Environmental Quality, which demands undertaking a SEIS when significant new circumstances or information arises. Marsh v. Oregon Natural Resources Council, 490 US 360 (1989). Recent studies indicate that river water saturated with nutrients from agricultural fertilizers causes marshland flora to develop shallow, poorly formed root structures that do not deeply anchor the plants to the soil. This soil is then easily washed away by flooding, storms, and the diversion waters itself because there are no well-formed root structures to hold it in place. Replacing deeply-rooted plants with shallow-rooted ones is causing a seriously different picture of the environmental landscape that the US Fifth Circuit and Supreme Court have held would merit another hard look by the Corps, and failing to address this issue would amount to conduct that is arbitrary and capricious. A further explanation of this instant threat follows.

EIS SAMPLE DOCUMENTS



EIS DISCOVERY AIDS

The primary source of the following content is:


38 Am. Jur. Proof of Facts 3d 547 (Originally published in 1996)
Necessity and Sufficiency of Environmental Impact Statements Under the National Environmental Policy Act written by Ray Vaughan, J.D.
Model Discovery
Interrogatories from plaintiff environmental group to federal agency, regarding decision not to prepare EIS
These interrogatories are designed for use by a plaintiff environmental group or individual that is challenging a federal agency's decision not to prepare an Environmental Impact Statement (EIS). Given the broad range of possible projects and potential impacts therefrom throughout the United States, the spectrum of environmental considerations involved in a decision whether to prepare an EIS can be wide indeed. Although many of the following interrogatories are general in nature, some are specific in order to show the type of evidence sought when challenging a decision not to prepare an EIS.
Other environmental obligations involved include considerations under the Endangered Species Act (ESA) and the National Historical Preservation Act. Since NEPA requires consideration of all reasonably foreseeable significant impacts on the human environment, an agency that may not have violated ESA may still have violated NEPA by not considering its obligations under ESA.
Caution:
While the following interrogatories are intended to provide a generic set of questions for use in most jurisdictions, be aware that a number of states and federal district courts have numerical limitations and form requirements; we are cautioned to check local rules and discovery statutes in the appropriate jurisdiction.
DEFINITIONS

A. PLAINTIFF means [name].


B. DEFENDANT means [name of agency and any officers that have been named in the suit].
C. PERSON means a natural person, partnership, firm, association, citizen group, nonprofit organization, corporation, proprietorship, governmental body, governmental office, government agency, or commission or any other organization or entity.
D. DOCUMENT means any recording of information in any tangible form. This definition includes, but is not limited to, reports, writings, letters, memoranda, correspondence, communications, agreements, contracts, checks, journals, ledgers, logs, notebooks, handwritten or typed notes, pamphlets, periodicals, computer printouts, computer files, computer data bases, communications through E-mail, communications through facsimile (fax) machines, records of meetings, books, speeches, public relations releases, material filed with any government agency, manuals, rules, regulations, any other written matter, photographs, sketches, diagrams, tape recordings, video recordings or other sound or visual reproductions, or any other thing on which information is recorded.
E. EIS means Environmental Impact Statement.
F. EA means the Environmental Assessment prepared by the Defendants that is the subject of this action.
G. NEPA means the National Environmental Policy Act of 1969.
H. DECISIONMAKER means the person or persons at [name of agency] that are responsible for the final decision to prepare the EA in question and not to prepare an EIS.
I. FONSI means the Finding of No Significant Impact issued by the Defendants which is the subject of this action.
J. NHPA means the National Historic Preservation Act.
K. ESA means the Endangered Species Act.
INSTRUCTIONS
A. IDENTIFY a natural person means to state his/her full name, his/her present or last known business address and telephone number, and his/her present or last known employer and position with that employer.
B. IDENTIFY any entity other than a natural person means to state the full name of such entity or organization and the present or last known address and telephone number of such entity or organization.
C. IDENTIFY a document means to state its date; its author; all persons involved in its drafting; the person responsible for its drafting and the person signing it; its addressee and all other persons receiving copies; the type of the document (letter, contract, report, memorandum, computer printout, computer file, and so on); its title; the substance of the document; its custodian, and its present or last known location. If the document is no longer in your possession or subject to your control, state what was done with the document, when it became outside your control or possession, why it became outside your control or possession, and who was involved in the document becoming outside your control or possession.
INTERROGATORIES
1. IDENTIFY yourself fully, giving your full name, address, business address, occupation, and the office that you hold with the [agency].
2. Prior to answering these interrogatories, have you made a due and diligent search of the agency's books, records, and papers, and due and diligent inquiry of the agency's agents and employees, with a view to eliciting all information available in this action?
3. IDENTIFY all persons who assisted in preparing responses to these interrogatories.
4. State with specificity any and all conversations, either in person or on the telephone, that you or any agent or employee of the [agency] has had with any person regarding [the proposed project and subject matter of the EA].
5. (a)State with specificity all dates and times of any and all meetings, whether formal or informal, from [date] to the present, that you or any agent or employee of the [agency] had with anyone regarding [the proposed project and subject matter of the EA].
(b) State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 5(a) above.
6. List the name and responsibilities of any and all persons who were involved in drafting and promulgating the EA, and who were involved in any way in the study of [the proposed project and subject matter of the EA].
7. List the name, occupation, and address of any and all persons outside the employ of the [agency] who were involved in the drafting and promulgating of the EA, and who were involved in any way in the study of [the proposed project and subject matter of the EA], and state with specificity all actions taken by those persons.
8. (a)List all studies, research, reports, inquires, investigations, and analyses undertaken by you or the [agency] in regard to determining that there would be no significant environmental impacts resulting from [the proposed project].
(b) What data did you or the [agency] gather, collect, or generate regarding the determination that there would be no significant environmental impacts resulting from [the proposed project]?
9. Set forth with particularity any and all conversations, meetings, or discussions among [agency] personnel and anyone else regarding political or economic influences upon the determination that there would be no significant environmental impacts resulting from [the proposed project].
10. (a) List all studies other than those submitted by industry, industrial groups, corporations, other business entities or any of their agents or representatives that were relied upon by the [agency] in deciding not to prepare an EIS on [the proposed project].
(b) List all studies submitted by industry, industrial groups, corporations, other business entities or any of their agents or representatives that were reviewed, considered, or relied upon by the [agency] in deciding not to prepare an EIS on [the proposed project].
11. With regard to the administrative record developed before the [agency] prior to issuance of the EA and the FONSI on [date], please answer the following:
(a) Did the decisionmaker read the entire record?
(b) Please state with specificity the exact dates and times that the decisionmaker engaged in reading the record.
(c) Is the decisionmaker qualified to understand everything in the record, and if so, what are those qualifications?
(d) If so, did the decisionmaker understand everything contained in the record?
(e) What things in the record provided a rational basis for the decision not to prepare an EIS?
(f) Does the decisionmaker consider the record deficient in any way?
(g) If you answered "yes" to Interrogatory 11(f), then state with specificity in what ways the decisionmaker found the record deficient.
12. (a) When the EA and FONSI were formulated, did the [agency] have certain economic goals in mind before it began that process?
(b) Did all the alternatives considered meet those goals?
(c) For the EA and economic objectives, did you consider alternatives of no [proposed project methodology] and selective [proposed project methodology]?
13. (a) Has the [agency] made an inventory of the flora and fauna in each and every compartment that is the subject of the EA and FONSI?
(b) Has the [agency] identified all indicator species in each and every compartment that is the subject of the EA and FONSI?
(c) Have you identified and considered habitat and habitat needs for all flora and fauna as a need in the EA?
(d) Have you considered the environmental impacts of your actions on all species in the area covered by the EA and the FONSI?
(e) Did the EA consider and plan for the entire biological community in the area covered by the EA?
14. (a) Did you consider the impacts of the proposed action on the Wilderness [name of wilderness area]?
(b) Did the agency consider the impacts of [the proposed project] on the border of the Wilderness [name of wilderness area] and on the possibility of future designated expansions by Congress?
15. (a) Has the [agency] surveyed all compartments covered by the EA to assure that any historic, cultural, or sacred site is not inadvertently demolished, substantially altered, or allowed to deteriorate significantly?
(b) Who conducted this research and what are his or her qualifications?
(c) What has the [agency] done to discover and consider possible impacts to historic, cultural, and sacred sites in the areas covered by the EA, and to insure compliance with the National Historic Preservation Act?
(d) Has the [agency] provided for evaluation and identification of appropriate sites for the National Register of Historic Places?
16. Has the [agency] identified and evaluated public issues and coordinated them with the [state] Historical Commission and local Indian Tribes?
17. Where does the [agency] reference and consider old growth in each EA or in the original EIS?
18. Identify any computer modeling programs used by the [agency] in identifying environmental factors or impacts and in making any decision regarding any of the environmental impacts identified or considered during the preparation of the EA.
19. Set forth with particularity all sampling and testing of water quality on [names of any water bodies impacted by proposed decision], including all methods used, the dates and times of the sampling, the persons involved in the sampling, the persons involved in the testing, and the results.
20. Identify each and every expert who has been consulted, retained, or employed by you in anticipation of this litigation or preparation for trial, and whom you do not expect to call as a witness at trial. State the area of expertise for which each expert was consulted.
21. Identify all possible or potential expert witnesses in this case with whom you have consulted. State the area of expertise for which each expert was consulted.
22. Identify each expert you expect to call as a witness at trial in this case. State with particularity the subject matter concerning which each expert witness is expected to testify, the substance of the facts and opinions to which each expert witness is expected to testify, and a summary for the grounds for each opinion. Identify all documents or exhibits each expert witness expects to rely upon. Identify whether any expert witness identified above has prepared any reports relating to this litigation.
23. Identify all other persons that you expect to call to testify as witnesses in this case. For each person, state with particularity the substance of that person's expected testimony, and identify all documents that related to the subject matter of that person's expected testimony.
Interrogatories from plaintiff environmental group to federal agency, regarding sufficiency of EIS
The following interrogatories are additional to those in the immediately preceding section, and are designed to be used by an individual or environmental group that is challenging the sufficiency of an Environmental Impact Statement (EIS) prepared by a federal agency. Many of the same interrogatories in the preceding section could also be used here, with minor modifications focusing not on the failure to prepare an EIS, but on the failure to issue an adequate EIS.
INTERROGATORIES
1. State with specificity any and all conversations, either in person or on the telephone, that the Defendant or any agent or employee of the Defendant has had with any person regarding the [the proposed project], the permit application for [the proposed project], or the permit itself.
2. State with specificity all dates and times of any and all meetings, whether formal or informal, that the Defendant or any agent or employee of the Defendant had with anyone regarding the [the proposed project], the permit application for [the proposed project], or the permit itself.
3. State with specificity all dates and times of any and all communications, whether by letter, facsimile machine (fax), or otherwise, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project], the permit application for [the proposed project], or the permit itself.
4. State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 2 above.
5. List the name and responsibilities of any and all persons who were involved in the drafting of the permit for [the proposed project].
6. List the name, occupation, and address of any and all persons outside the employ of the Defendant who were involved in drafting the permit for [the proposed project], and state with specificity all actions taken by those persons regarding the permit.
7. List all studies undertaken by this Defendant during consideration of the permit for [the proposed project].
8. Set forth with particularity any and all conversations, meetings, or discussions among Corps personnel and anyone else that regarded political or economic influences upon the permit for [the proposed project].
9. List all studies that were relied upon by the Corps in granting the permit for [the proposed project].
10. List all studies done by the Corps regarding endangered and threatened species during the permitting process for [the proposed project].
11. Set forth with particularity any and all conversations, meetings, discussions, or communications between Corps personnel and the United States Fish and Wildlife Service regarding [the proposed project], and set forth the contents of those conversations, meetings, discussions, or communications.
12. State with specificity any and all conversations, either in person or on the telephone, that the Defendant or any agent or employee of the Defendant has had with any person regarding [the proposed project] of [corporate name], the permit application for [the proposed project], or the permit itself.
13. State with specificity all dates and times of any and all meetings, whether formal or informal, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project] of [corporate name], the permit application for [the proposed project], or the permit itself.
14. State with specificity all dates and times of any and all communications, whether by letter, facsimile machine (fax), or otherwise, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project] of [corporate name], the permit application for [the proposed project], or the permit itself.
15. State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 13 above.
16. List the name and responsibilities of any and all persons who were involved in drafting the permit for [the proposed project] of [corporate name].
17. List the name, occupation, and address of any and all persons outside the employ of the Defendant who were involved in drafting the permit for [the proposed project] of [corporate name], and state with specificity all actions taken by those persons regarding the permit.
18. List all studies undertaken by this Defendant during consideration of the permit for [the proposed project] of [corporate name].
19. Set forth with particularity any and all conversations, meetings, or discussions among Corps personnel and anyone else regarding political or economic influences upon the permit for [the proposed project] of [corporate name].
20. List all studies that were relied upon by the Corps in granting the permit for [the proposed project] of [corporate name].
21. List all studies done by the Corps regarding endangered and threatened species during the permitting process for [the proposed project] of [corporate name].
22. Set forth with particularity any and all conversations, meetings, discussions, or communications between Corps personnel and the United States Fish and Wildlife Service regarding [the proposed project] of [corporate name], and set forth the contents of those conversations, meetings, discussions, or communications.
23. (a) For these permits, did the Corps of Engineers consider off-site impacts?
(b) If not, explain in detail why such impacts were not considered.
(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering off-site impacts.
24. (a) For these permits, did the Corps of Engineers consider the cumulative impacts of projects taken together?
(b) If not, explain in detail why such impacts were not considered.
(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering those cumulative impacts.
25. (a) For these permits, did the Corps of Engineers consider the cumulative impacts of these projects along with the current impacts of the present circumstances and the present facilities of other permittees in the area?
(b) If not, explain in detail why such impacts were not considered.
(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering those cumulative impacts.
26. What alternatives to permitting these projects did the Corps consider? Explain in detail how those alternatives were identified and how the various environmental impacts from each alternative were determined.
27. What mitigation measures for the proposed action of permitting these projects did the Corps consider? Explain in detail how those mitigation measures were identified and how the various environmental impacts from the proposed action will be mitigated by those measures.


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