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- Federal Statutes
- EIS PROCEDURAL GIUDE Federal Case law and secondary sources
- Topic of Article
- I. Background
- Inconsequential or technical deficiencies
- Primary goal of NEPA
- Cases: Rule of reason
EISEIS LEGISLATION State Statutes LSA-Const. Art. 9, § 1 § 1. Natural Resources and Environment; Public Policy Section 1. The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.
§ 2018. Environmental assessment hearings A. The applicant for a new permit or a major modification of an existing permit as defined in rules and regulations that would authorize the treatment, storage, or disposal of hazardous wastes, the disposal of solid wastes, or the discharge of water pollutants or air emissions in sufficient quantity or concentration to constitute a major source under the rules of the department shall submit an environmental assessment statement as a part of the permit application. B. The environmental assessment statement provided for in this Section shall be used to satisfy the public trustee requirements of Article IX, Section 1 of the Constitution of Louisiana and shall address the following issues regarding the proposed permit activity: (1) The potential and real adverse environmental effects of the proposed permit activities. (2) A cost-benefit analysis of the environmental impact costs of the proposed activity balanced against the social and economic benefits of the activity which demonstrates that the latter outweighs the former. (3) The alternatives to the proposed activity which would offer more protection to the environment without unduly curtailing non-environmental benefits. C. The department may, and if requested, shall, conduct a public hearing on the environmental assessment statement in the parish where the facility is located. Any public hearing on the environmental assessment statement, whether requested or at the discretion of the department, may be combined with a public hearing on the proposed permit. If the facility is located in more than one parish, the department may conduct a single hearing to serve all the affected parishes in the vicinity of a centrally located facility. Simultaneously with the submission of the statement to the department, the applicant shall also submit copies of the statement to the local governmental authority and designated public library where the facility is located, at no cost to the local governmental authority or the designated public library. D. If public hearings are conducted pursuant to this Section, they shall be controlled by R.S. 30:2017. E. The following are not subject to this Section: (1) An application for a minor modification, minor variance, or exemption from or administrative amendment to a permit, license, registration, variance, or compliance schedule authorized by this Subtitle. (2) An application for a minor source of air emissions, hazardous wastes, or solid wastes, or for a facility or activity which is not a major facility for water discharges. (3) An application for authority to commence construction, a groundwater certification, or any decision regarding remedial action, remediation, response, corrective action, or cleanup of soil, groundwater, or surface water related to the facility or such immovable property. (4) An application for renewal or extension of existing permits, licenses, registrations, exemptions, variances, or compliance schedules, unless said renewal or extension encompasses changes that need to be addressed as major applications. (5) Any rulemaking by the department. F. The provisions of this Section shall not apply to permits applied for prior to September 15, 1997. G. The department shall rely on its applicable rules and regulations to determine whether a source, facility, or modification is considered as major or minor for the purposes of this Section. H. Nothing in this Section shall relieve permit applicants or the department from the public trustee requirements set forth in Article IX, Section 1 of the Constitution of Louisiana and by the Supreme Court of Louisiana in Save Ourselves v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La. 1984). Subsequent case law and laws interpreting said decisions and the rules and regulations adopted by the department in accordance with those decisions may be used to implement these requirements. Federal Statutes 42 U.S.C.A. § 4321 § 4321. Congressional declaration of purpose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.
§ 4331. Congressional declaration of national environmental policy it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
Because NEPA litigation has been ongoing since the statute was passed in 1969, most questions about the Act's requirements might seem to have been settled. NEPA's legal requirements are now fairly well known to government agencies, and compliance with the law has become more common among the agencies that have had significant experience with it. Nevertheless, proof of NEPA compliance remains vital for government agencies due to expanded federal activity and the variety of factual situations it may involve, and because of greater public awareness regarding NEPA's mandates. Knowledge of what must be established to make a case under NEPA thus persists as an important area of environmental law. This article examines the proof necessary to sustain a legal challenge to a federal agency's failure to prepare an environmental impact statement, or allegations that a statement issued by the agency did not adequately assess the proposed action's environmental impacts. Coverage includes a review of NEPA's general requirements, as well as its enforcement and remedies provisions. The article also explores issues involving the decision whether to issue an EIS, and as to the development and contents of such a statement. Other topics covered include judicial review of agency decisions under NEPA; proving and challenging the sufficiency or nonpreparation of an EIS; and exceptions to NEPA requirements. The article provides checklists of the applicable elements of proof, and model interrogatories from a plaintiff environmental group to the acting federal agency. In addition, the article provides sample testimony tending to establish claims that the agency violated NEPA by failing to prepare an EIS or by issuing an inadequate one. Sources for further research are listed in a bibliography at the conclusion of the article.
Because of the operational similarity between NEPA, and NHPA, courts generally treat "major federal actions" under NEPA as closely analogous to "federal undertakings" under the NHPA. National Historic Preservation Act Amendments of 1980, §§ 1 et seq., 16 U.S.C.A. §§ 470 et seq.; National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 49 Fed. R. Serv. 3d 697 (10th Cir. 2001), cert. denied, 2002 WL 13244 (U.S. 2002) § 2. General requirements of the national environmental policy act (NEPA)
[I]t is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. Additionally, NEPA "recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment." These policy considerations were intended to signal an important change in how the federal government does business; under NEPA, consideration of environmental impacts would become a primary function of federal agencies as they went about their usual affairs. To implement these broad and lofty goals, NEPA provides that all federal agencies conform their administrative procedures and policies to those stated in NEPA. The Act makes its clear that NEPA provides additional authority to each and every federal agency to consider the environmental impacts of its actions. Thus, every federal agency has the authority to consider environmental impacts in its decisionmaking processes, regardless of whether its operative statutes give it that authority, as NEPA confers that power on all federal agencies. Because of NEPA, no federal agency can claim that it lacks the authority to consider environmental impacts as it implements its other commands. NEPA's principal feature is found in § 102. This is the requirement that federal agencies planning a major federal action that would have a significant impact on the human environment prepare an Environmental Impact Statement (EIS). Specifically, the statute provides that all federal agencies shall: include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i)the environmental impact of the proposed action, (ii)any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii)alternatives to the proposed action, (iv)the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v)any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. This one section provides most of the mandates of NEPA, and has spawned most of the litigation under it. The key issues in such litigation are: (1) When is a recommendation or report sufficiently concrete that it triggers NEPA obligations? (2) What is a "federal" action? (3) When is a federal action "major"? (4) Does the action in question "significantly" affect the environment? (5) Is the agency's EIS sufficient in its scope and in its consideration of environmental impacts? These issues are generally fact intensive and require various types of proof. A plaintiff challenging a federal agency's decision not to issue an EIS must show that the "action" contemplated by the agency is concrete enough to trigger NEPA obligations. In other words, the "action" must be more than some possible proposal in the mind of one bureaucrat who has yet to send it to others and begin the process of making that idea a reality. On the other hand, a final proposal for a dam on a major river that is ready for congressional funding would clearly require NEPA consideration. The difficulties of proof lie in between these two examples, and the heart of the question involves evidence that the challenged action will lead to further action that will have environmental impacts. The question whether a proposed action is "federal" comes up much less often. Normally, when the Army Corps of Engineers is considering a permit to fill a wetland, or the National Park Service is deciding whether to build a campground in grizzly bear habitat in Yellowstone, it is clear that a federal agency is acting. Problems arise when, for instance, a state plans on building a new highway; NEPA does not apply to state agencies, but if federal funds or federal permits are involved, NEPA would be implicated. Thus, if state or private action is "federalized" through some kind of federal "nexus," the federal agency involved will have to comply with NEPA. The amount of federal assistance and the extent of federal control are key issues in determining whether an action is sufficiently "federal" to implicate NEPA requirements. A certain degree of necessary federal control and exercise of discretion over the action is needed. A state's use of federal funds, where the federal government has no control over how the state uses those funds, has been insufficient "federal" action to require NEPA compliance. Whether a proposed federal action qualifies as "major" for NEPA purposes is another difficult issue. This is a highly factual question, as proof of possible impacts and of the scope of the action itself must be relied on to establish or negate its "major" quality. Yet another fact-intensive issue, generally requiring specialized expert testimony, is whether a proposed federal action would "significantly" affect the environment. A mixture of legal and factual issues is often raised when the question is whether an agency's EIS is sufficient in its scope and consideration of environmental impacts. For example, if the agency decisionmaker completely failed to consider any alternatives to the proposed action, then, as a matter of law, the agency did not comply with NEPA's mandates under § 102(C)(iii). However, if the agency followed all the legal requirements, a factual issue could remain as to whether the agency sufficiently considered the environmental impacts. If an agency did consider alternatives to building a dam for electricity generation, but all the data was prepared by an archeologist who knew nothing about dams, geology, hydrology, or electricity, then, as a factual matter, the EIS would be insufficient under NEPA. The question whether an EIS is factually sufficient has been judged by courts under the "clear error of judgment" standard, but due to recent United States Supreme Court decisions, the standard of review may now be the "arbitrary and capricious" standard. It is very important to note that NEPA is a procedural statute only; it makes no substantive demands on the federal agencies. NEPA requires that agencies take a "hard look" at the environmental effects of a proposed action and its alternatives, but the statute does not require that agencies choose the most environmentally benign alternative, or refrain from choosing the most environmentally destructive alternative. The Supreme Court has made it clear that NEPA mandates no particular result from the consideration of environmental impacts, but only that those impacts be identified and considered. Inconsequential or technical deficiencies: Adequate agency consideration of project's environmental consequences under NEPA is evidenced through form, content, and preparation of environmental impact statement (EIS); Court of Appeals need not "fly speck" an EIS for inconsequential or technical deficiencies, but instead considers whether the agency's actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115 (8th Cir. 1999) Primary goal of NEPA is to make sure a government agency carefully gathers and evaluates relevant information about the potential impact of a proposed agency action on the environment and that this information is made available to the public. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10th Cir. 2002) Under NEPA, an environment impact statement (EIS) process is intended to ensure that the agency, in reaching its decision will have available, and will carefully consider, detailed information concerning significant environmental impacts, and it also guarantees that the relevant information will be made available to the larger audience that may also play a role both in the decisionmaking process and the implementation of that decision. National Environmental Policy Act of 1969 et seq., § 2, 42 U.S.C.A. § 4321 et seq. Conservation Law Foundation v. Federal Highway Admin., 630 F. Supp. 2d 183, 66 Env't. Rep. Cas. (BNA) 1038, 2007 DNH 106 (D.N.H. 2007). When determining whether an environmental impact statement (EIS) satisfies National Environmental Policy Act (NEPA), a court must make a pragmatic judgment as to whether the agency has fostered the two principal purposes of an EIS: informed decision-making and informed public participation; rather than getting bogged down in possible technical flaws, a court must take a holistic view of what the agency has done to assess environmental impact, and must remember that it is the agency, and not the court, that has the technical expertise required to perform the environmental analysis in the first place. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). Habitat Education Center, Inc. v. U.S. Forest Service, 593 F. Supp. 2d 1019 (E.D. Wis. 2009). Unlike most federal environmental statutes, NEPA does not have a citizen suit provision that explicitly allows citizens to sue over alleged violations of the Act. However, the courts have long allowed citizens, environmental groups, and corporations to bring legal actions under the Administrative Procedure Act (APA)28 regarding decisions made under NEPA. Thus, every complaint alleging a NEPA violation must include a claim that the APA has been violated regarding the decision at issue. Working through the APA, relief for NEPA violations involves injunctive relief, and no assessment of penalties for violations of NEPA is possible. NEPA also set up the Council on Environmental Quality (CEQ), which the statute empowers to promulgate regulations on NEPA compliance that are binding on all federal agencies. Federal agencies must establish their own regulations for ensuring NEPA compliance in all of their proposed projects, while the CEQ regulations provide guidance and a set of requirements every agency must meet. § 4. Decision whether to issue an EIS With respect to every proposed federal action, the responsible agency must prepare an Environmental Assessment (EA), which is essentially a mini-EIS that briefly examines the possible environmental impacts of the action. Perhaps the main reason for an EA is to determine whether a full EIS is required. If the EA examination of the proposed action's possible environmental effects shows that there will be no significant impact, then the preparation of an EIS is not required, and the agency may proceed with the project. Such a conclusion is called a Finding Of No Significant Impact, or FONSI. Considerable litigation under NEPA has focused on whether an EA and resulting FONSI are sufficient, and whether these documents were wrong concerning the impact of the proposed action. The federal courts review agency decisions not to prepare an EIS under the Administrative Procedure Act's "arbitrary and capricious" standard. Although that standard is very deferential to agency discretion, the courts have not turned a blind eye to official pronouncements of no significant impact, and carefully review such decisions to make sure that NEPA has been complied with fully. Cases: Rule of reason: Inherent in NEPA and its implementing regulations is "rule of reason," which ensures that agencies determine whether and to what extent to prepare environmental impact statement (EIS) based on usefulness of any new potential information to decisionmaking process; where preparation of EIS would serve no purpose in light of NEPA's regulatory scheme as a whole, no rule of reason worthy of that title would require agency to prepare EIS. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. §§ 1500.1(b, c), 1508.8, 1508.9, 1508.18. 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) Under NEPA, agency is required to provide environmental impact statement (EIS) only if it will be undertaking a major Federal action, which significantly affects quality of the human environment. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. §§ 1508.8, 1508.18. Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d 215, 36 Envtl. L. Rep. 20195 (5th Cir. 2006) Download 0.66 Mb. Share with your friends:
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