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Association of Environmental Professionals

2010 Annual Conference

NEPA Update 2010:


What a Difference a Year Makes

Presented by:

Ron Bass, JD, AICP Al Herson, JD, FAICP


Senior Regulatory Specialist Attorney
ICF International Sohagi Law Group

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After 40 Years…NEPA’s Fundamentals Are Unchanged…

 NEPA is:
• Still the cornerstone of U.S. environmental policy
• An important bridge between science and politics
• Institutionalized and accepted
• The best federal forum for public participation
• Having a profound influence on the outcome of federal actions
• Serving as a role model for similar environmental laws throughout the
world

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Recent Trends in NEPA Practice

 Economic Stimulus and NEPA


 Obama Administration policy changes
 New CEQ Guidance on NEPA
 Federal agencies NEPA practices
 New areas of emphasis in NEPA compliance
 Key court decisions

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NEPA and the American Recovery and Reinvestment Act of
2009

 $100 Billion-plus in infrastructure spending


• Federal $$$
• States $$$
 Money must be spent within certain time periods
 No NEPA exemption for stimulus projects
 NEPA streamlining encouraged within existing legal framework
 CEQ must report quarterly to Congress on NEPA implementation
 CEQ issued reporting guidance to federal agencies

http://ceq.hss.doe.gov/nepa/regs/Recovery_Act_and_NEPA_040309.pdf

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Funding Paths Overview
$$$ $$$

NEPA Congress NO
NEPA

Federal
Agencies States
(Governor)

States
(Governor) Some
states
have “little
NEPA” State
State Agencies
laws
Agencies
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Screening for NEPA Applicability

 Federal projects
• Which agency is the “lead agency”?
• Has NEPA already been completed?
• Does a Categorical Exclusion apply?
• Can project be tiered to a prior NEPA document?
• Can the project be “mitigated” to support a FONSI?
• Is an EIS required? If so, how can it be streamlined?
 State projects
• Is there any federal involvement? (e.g. funding, permits, leases, right-of
way, etc.)
• Does a “little NEPA” apply ? If so, which document? What is the status?
• Can a joint document be prepared?

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NEPA and Recovery Act Funded Projects
January 2009 – December 2009
(includes both completed and pending actions)
Type of NEPA Number of Federal Approx. % of all
Action Actions NEPA Actions
NEPA Not Applicable 4,141

CATEX 158,316 94.9%

EA 7,596 4.6%

EIS 806 0.5%

Total NEPA docs. 166,718 100%

Source: CEQ quarterly reports to Congress


http://ceq.hss.doe.gov/nepa/nepanet.htm
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“Shovel-Ready” Funding Priority

1. No NEPA necessary
2. Project subject to CATEX
3. Project can be tiered to prior EA or EIS
4. EA or EIS (and other permitting) completed
5. EA in preparation
6. EIS in preparation
7. NEPA required but not yet started

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Reported NEPA “streamlining” within the existing legal
framework: should a red flag be raised?

 168,000 + Categorical Exclusions (95%)


 Create of new, broader categories of exclusions
 Use of “programmatic categorical exclusions” for multiple, similar
projects
 Agency specific “waivers” under non-NEPA legislative authority

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NEPA and the Obama Administration

 New environmental team


 New environmental policies
• Sustainability
• Climate change/adaptation
• Greening of government
 Changes from the prior administration
• Invigorating enforcement of environmental laws
• Taking NEPA more seriously
• Reversing the direction of public land management
• Changes in litigation defense strategy

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Executive Order 13514
Federal Leadership in Environmental, Energy and Economic
Performance (Oct 5, 2009)

 Energy Efficiency
 GHG reduction
 Water conservation and management
 Recycling and pollution prevention
 Sustainability
 Livable communities
 Transparency in government
 NEPA provision
“Federal agencies must advance regional and local integrated planning by
“identifying and analyzing impacts from energy usage and alternative
energy courses in all EISs and EAs for proposals for new or expanded
Federal facilities under NEPA”

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NEPA’s 40th Anniversary
Presidential Proclamation (December 31, 2009)

 “….NEPA was signed into law with overwhelming bipartisan support,


ushering in a new era of environmental awareness and citizen
participation in government. NEPA elevated the role of environmental
considerations in proposed Federal agency actions and it remains the
cornerstone of our Nation's modern environmental protections.…“

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Council on Environmental Quality
(CEQ) Recent Activities

 On-going NEPA oversight


 Recovery Act quarterly reporting
 New NEPA web site
 Proposed NEPA guidance (released February 18,2010)

• Draft Guidance on Consideration of the Effects of Climate Change and


Greenhouse Gas Emissions
• Draft Guidance for NEPA Mitigation and Monitoring
• Draft Guidance on Establishing and Applying Categorical Exclusions under
NEPA

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NEW NEPA Website
http://ceq.hss.doe.gov/current_developments/new_ceq_nepa_guidance.html

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Draft Guidance on Consideration of the Effects of
Climate Change and Greenhouse Gas Emissions

 Evaluating GHG emissions


• For large project subject to GHG accounting requirements, such as the
EPA reporting requirements under the Clean Air Act (e.g. stationary
sources with annual, direct emissions of 25,000 metrics tons of CO2 or
more) the GHG emissions identified in those reporting requirements should
be included in the NEPA document
• Three specific modeling approaches recommended
• For projects less that 25,000 metric tons, utilize scoping and inter-agency
consultation to determine whether to quantify GHG emissions and how
they should be evaluated.
• In evaluating GHG emissions agency should consider “upstream” and
“downstream” activities, but limited to those that are reasonably
foreseeable

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Draft Guidance on Consideration of the Effects of
Climate Change and Greenhouse Gas Emissions

 Evaluating impacts of climate change


• Identify of the reasonably foreseeable future conditions of the affected
environment, which would serve as the “no-action” alternative
• Focus on the long-term aspects of a project that are more likely to
experience the effects of climate change in the future
• Rely on mitigation measures (e.g. adaptation measures) based on
adaptive management and monitoring so as to flexible enough to be
modified in the future as conditions change
• Maximize the use of “incorporation by reference” of existing and emerging
studies to describe the effects of climate change, but that for and to
evaluate impacts at meaning scales (e.g. regional and local) based on that
data.

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Draft Guidance for NEPA Mitigation and Monitoring

 Validates the “Mitigated FONSI” as a legitimate tool under NEPA


 Sets for three goals
1. Proposed mitigation should be considered throughout the NEPA process
2. a monitoring program should created or strengthened to ensure
mitigation measures are implemented and effective
3. Public participation and accountability should be encouraged through
proactive disclosure of, and access to, agency mitigation monitoring
reports and documents.
 Emphasizes both “implementation” monitoring and “effectiveness”
monitoring
 Suggests that failed mitigation may require preparation of supplemental
NEPA document
 Encourages mitigation to rely on principles of adaptive management

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Draft Guidance on Establishing and
Applying Categorical Exclusions under NEPA

 The process for establishing a new CE


 The role of public involvement and documentation in defining and
substantiating a proposed CE
 How to use a CE and what documentation is necessary to support it
• CEQ discourages extensive documentation
• CEQ encourages public notification of CEs
 Conducting periodic reviews of CEs to assure their continued
usefulness.

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Updated Principles & Guidelines for Water
and Related Resource Implementation Studies
(CEQ – Dec. 3, 2009)

1. Achieving Co-Equal Goals: protect & restore the environment & improve the
economic well-being of the nation (maximize net national economic,
environmental, and social benefits).
2. Considering Monetary and Non-Monetary Benefits: Consider both monetary
and non-monetary benefits to justify and select a project (e.g. fish and wildlife
benefits, or biodiversity).
3. Avoiding the Unwise Use of Floodplains: Modification of water resources &
floodplains to be based on evaluations of the services gained and lost with full
and equal consideration to nonstructural approaches to floodplain
management.
4. Increasing Transparency and “Good Government” Results: Use of best
science, peer review, and full transparency with more rigorous study process.

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NEPA in the Courts

 In 2009:
• 50 + appellate decisions
• Almost half in the 9th Circuit Court of Appeals
• Agency win rate = 75% (approx.)
• 9th Circuit agency win rate = 50% (approx.)

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NEPA Applicability Cases

Ninth Circuit Court of Appeals Cases


Other Circuit Courts of Appeals Cases

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Greater Yellowstone Coalition v. Tidwell

 For years, the State of Wyoming ( Game and Fish Department) has
been operated feeding grounds for Elk on Forest Service and BLM
land. Neither agency has ever conducted an environmental analysis
(either EIS or EA) on these operation
 Greater Yellowstone challenged for failure to comply with NEPA, based
on environmental impacts of increased disease risk
 Court held NEPA compliance was not required:
• As to some USFS feeding grounds, the issue was moot because agency
already conducted the required analysis
• As to other USFS feeding grounds, there was no ongoing “federal” action
and the six-year APA statute of limitations had run
• As to BLM feed grounds there was no on-going “federal” action based only
annual review of ten-year-old MOU between agency and state.

572 F 3d 1115 (10th Cir. 2009)


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Piedmont Environmental Council V. FERC

 FERC adopted, with no NEPA compliance, rules implementing Sec.


216 of the Federal Power Act
• allowing permit issuance for certain transmission lines and preempting
certain state authority
• Changing its NEPA regulations for such projects
 Piedmont challenged ruling-making
• Violation of Federal Power Act
• Failure to comply with NEPA – No EIS or EA/FONSI prepared
 Court held:
• Rule was too expansive and, therefore, invalid
• No EA/FONSI or EA was required – but….
• FERC violated NEPA by not consulting with CEQ before adopting the rule

558 F 3d 304 (4th Cir. 2009)ICF Proprietary and Confidential – Do Not Copy, Distribute, or Disclose

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Categorical Exclusion Cases

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California Ex. Rel Lockyer v. U.S. Department of
Agriculture

 Forest Service adopted the State Petitions Rule to replace the Clinton-
era Roadless Rule and relied on a Categorical Exclusion
• CATEX covered “rules, regulations, or policies to establish Service-wide
administrative procedures, programs, processes, or instructions.”
 California and other states challenged the rule and argued that reliance
on CATEX was an improper distortion of an exemption intended for
routine, procedural actions
 Court held that use of CATEX was unlawful to support a major
regulatory change affecting millions of acres of roadless areas
• According to the court: “ such a substantial regulatory change is neither
routine nor merely procedural.”

575 F. 3d 999 ( 9th Cir. 2009)ICF Proprietary and Confidential – Do Not Copy, Distribute, or Disclose

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EA/FONSI Cases

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Alaska Wilderness League v. Kempthorne

 Minerals Management Service's ("MMS") prepared an EA/FONSI to


support approval of an exploration plan submitted by Shell Offshore Inc.
("Shell") to drill multiple offshore exploratory oil wells over a three-year
period in the Alaskan Beaufort Sea.
 AWL challenged, alleging that the EA/FONSI was inadequate and
seeking an EIS. Four issues were raised:
• Improper tiering
• Deferral of essential studies
• Inadequate mitigation
• Lack of convincing reasons why there would be no significant effects

548 Fed. 3d 815 (9th Cir. 2008)


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Alaska Wilderness League v. Kempthorne
(Cont.)

 Court held EA/FONSI was inadequate:


• MMS failed to conduct site-specific studies to support tiering
• MMS failed to take a “hard look” at the impacts - analysis of impacts to
bowhead whales and Inupiat subsistence was cursory and insufficient
• Mitigation measures were vague, uncertain and non-binding
• Explanation of why impacts where not significant was lacking, despite
presence of five “intensity”
• 1) unique and ecologically critical characteristics of the area;
• 2) a high level of controversy;
• 3) a high degree of unknown risks;
• 4) the possibility of cumulatively significant effects, and;
• 5)effects to endangered or threatened species.

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White Tanks Concerned Citizens v. Strock

 USACE granted 404 permit authorizing fill activities for a 10,105 acre
residential, master-planned community in a desert area near White
Tank Mountains and Hassayampa River floodplain
• 787 acres washes traverse entire project area
• 144 acres washes dispersed throughout development site
• 26.8 acres of fill would occur from development (2.6%)
 Corps issued 404 permit with EA/FONSI, limiting scope to the activities
directly affecting the 787 acres of washes and 83.6 acres of uplands
adjacent to the washes

563 F.3d 1033 (9th Cir. 2009)


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White Tanks
(Cont.)

 Court held that “because the project’s viability is founded on the Corps’
issuance of a Section 404 permit, the entire project is within the Corps’
purview”
• Washes are “dispersed throughout the project area in such a way that, as
a practical matter, no large-scale development could take place without
filling wetlands” ( e.g. Save our Sonoran)
• Washes filled here would not be confined to particular portions of the site
(e.g. Wetlands Action Network)
• Developer’s no-action alternative not feasible because “the result would
not be a cohesive master-planned community. The result would be
isolated clusters of development,” contrary to the intent of proposed project
• Permit denial would force abandonment of master plan

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Public Citizen v. Nuclear Regulatory Commission

 NRC prepared an EA on the adoption of the “Design Basis Threat” rule


 Public Citizen challenged for failure to evaluate risk of air-based
terrorist attack
 Court held EA was adequate
• Risk of air base attacks were not within the scope of the DBT and could,
therefore, did not have to be evaluated

573 F. 3d 916 ( 9th Cir. 2009)


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City of Las Vegas v. Federal Aviation Administration

 FAA prepared an EA/FONSI to support making changes to the


departure routes at McCarran International Airport in Las Vegas
 City and citizens challenged:
• EA did not sufficiently evaluate the safety risks to neighboring residents
from re-routing and speed reductions
• EA analysis of air and noise impacts was inadequate
 Court held:
• FAA’s simulator flights tests were adequate to evaluate risk
• Opponents extra-record evidence was insufficient to support their
argument that additional risk assessment was necessary
• Analysis of air and noise impacts was adequate

570 F. 3d 1109 (9th Cir. 2009)


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Ventana Wilderness Alliance v. Bradford

 US Forest Service prepared an EA/FONSI to support the re-


establishment of grazing in a wilderness area; grazing had been on-
going for over 100 years, but recently interrupted
 Ventana challenged EA/FONSI alleging significant effects
 Court upheld EA/FONSI
• visual, auditory and olfactory impacts on recreation from livestock grazing
was adequately evaluated
• EA could rely on data extrapolated from other areas rather than on-site
testing
• Grazing would occur in winter and recreation in summer

313 F 3d 944 (9th Cir. 2009)


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State of New Mexico ex. Rel Richardson v. BLM

 BLM approved and oil and gas lease on the Otero Mesa (Chihuahuan
Desert grassland); based on RMP without any site-specific NEPA
analysis
 State of New Mexico challenged alleging that NEPA required a site-
specific analysis of the impacts
 Court held:
• NEPA violated because no site-specific analysis was conducted
• Adoption of different alternative should have required a SEIS
• Reliance on RMP EIS was insufficient; without supplementation
• EIS did not analyze an adequate range of alternatives
• EIS did not sufficiently evaluate aquifer impacts

565 F3d 683 (10th Cir. 2009)


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Sierra Club v Wagner

 USFS prepared Environmental Assessments and approved two forest


management projects in the White Mountain National Forest;
 Sierra Club challenged for failure to prepare an EIS
 Court held that the Environmental Assessments were adequate:
• USFS had discretion to select which methodology to use in evaluating
impacts
• USFS considered “all arguable categories of harm”
• “Possibly little was saved by doing EAs of this character (e.g. long and
detailed) instead of EISs, but it is not clear that anything was lost”
• Public review of EA was adequate

555 F. 3d 1st 21 (1st Cir. 2009)


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Ohio Valley Environmental Coalition v.
Aracoma Coal Co.

 U.S. Army Corps issued 404 permits allowing fill related to surface coal
mines (mountain top mining) which authorized:
• 23 valley fills and 23 sediment ponds,
• 68,841 linear feet (13+miles) of intermittent and ephemeral streams,
(13+ miles)
 Corps prepared an EA and “Mitigated FONSI”;
 Mitigation consisted of various types of compensation, including
• stream enhancements,
• stream restoration,
• stream creation.
With monitoring and success criteria tied to “value and function”

556 F 3d 177 ( 4th Cir. 2009)


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Ohio Valley Environmental Coalition v. Aracoma Coal Co.
(Cont.)

 Ohio Valley challenged alleging


• Improper scope of analysis (fills only – not impacts of entire project)
• Inadequate Mitigation
• Inadequate analysis of cumulative impacts
 Court held:
• Corps could limit scope to just fill areas; Corps did not have sufficient
control over remainder of project which was subject to SMCRA (giving
states control over the mining)
• Mitigation was adequate to support a FONSI; details not improperly
deferred
• Cumulative analysis was adequate

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City of Dallas v. Hall

 USFWS prepared an EA/FONSI for establishing an acquisition


boundary for an National Wildlife Refuge (which precluded the City and
Texas Water Board from developing a reservoir
 City challenged alleging EA was inadequate and seeking an EIS
 Court upheld EA
• Range of alternatives adequate; even though it did not include a reservoir
alternative
• Use of old data was adequate absent showing that it mattered
• Evaluation of on future reservoir would have been speculative
• NEPA process was proper; sufficient agency consultation
• No physical effects to trigger an EIS

562 F. 3d 712 (5th Cir. 2009)


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Missouri Coalition for the Environmental…v. FERC

 FERC prepared an EA on the reconstruction of a hydroelectric


generating facility that had collapsed
 Missouri Coalition challenged alleging EA should have look at the
impacts of re-licensing at the end of current license
 Court held that EA was adequate
• Reconstruction does not make re-licensing a reasonably foreseeable
future action for cumulative impact purposes
• Reconstruction and re-licensing are separate actions and need not be
considered together

544 F. 3d 955 (8th Cir. 2008)


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EIS Cases

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Center for Biological Diversity
v. U.S. Department of Interior

 BLM entered into a land exchange with a mining company; exchange


would transfer mining land out of federal ownership and thus not
subject to the Mining Act of 1872
 BLM prepare an EIS, but concluded that the impacts of the mining
would be the same under all alternatives including the “no-action” (e.g.
no exchange)
 CBD challenged alleging that mining impacts would be much worse
under private ownership with no controls than under federal ownership
and controls
 Court held that the EIS was inadequate for failure to include a
meaningful comparison of alternatives

581 F. 3d 1063 (9th Cir. 2009)


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League of Wilderness Defenders v. U.S. Forest Service

 Forest Service prepared an EIS to support adoption of a forest


management project that included timber harvesting, thinning and
habitat management.
 In evaluating cumulative impacts, the FS tiered off of a Watershed
Analysis which relied on an “aggregate” approach to past actions rather
than using the detailed “list approach”
 LWD challenged alleging that the “aggregate approach” was improper
in view of prior decisions, including Lands Council v. Powell (Lands
Council v. Powell (Lands Council I), 395 F.3d 1019, 1028 (9th Cir.
2005) in which the 9th Circuit required a detailed “catalogue of past
actions”

549 F. 3d, (9th Cir. 2008)


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League of Wilderness Defenders v. U.S. Forest Service
(Cont.)

 Court held:
• “aggregate approach “ was reasonable because CEQ issued reasonable
guidance supporting such an approach (Guidance on Consideration of
Past Actions in Cumulative Effects Analysis.” – June 2005)
• EIS was, nevertheless inadequate because, NEPA does not allow tiering
from a non-NEPA document and the Watershed Analysis was never
subject to NEPA

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Wildwest Institute v. Bull

 Forest Service prepared an EIS for a hazardous fuel reduction project


 Wildest Institute challenged based on:
• Agency’s disregard of data prepared by its own experts
• Failure to adequately evaluate cumulative impacts

 Court upheld EIS


• Agency has discretion to select which data to use; so long as it explains its
methodology and conclusions
• Data was properly explained and reported; therefore EIS was adequate

547 F. 3d 1162 (9th Cir. 2009)


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Ecology Center v. Castenada

 U.S. Forest Service approved 9 timber sales each with either an EIS or
EA/FONSI
 Ecology Center challenged alleging
• inadequate cumulative impact analysis
• Poor data quality and inappropriate presentation of old-growth data and
impacts
 Court held:
• Cumulative impacts of past project could be aggregated
• Deference to agency regarding methods of analysis and presentation of
data

574 F. 3d 652 (9th Cir. 2009)


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River Runners for Wilderness v. Martin

 National Park Service, based on an EIS, approved permit for the


continued use of motorized rafts and support equipment in Grand
Canyon National Park
 River Runners challenged alleging inadequate cumulative impact noise
impact analysis
 Court held that EIS specifically considered the cumulative effects of
noise on the river environment, including noise from river traffic,
helicopters, and aircraft overflights

574 F. 3d 723 (9th Cir. 2009)


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National Parks and Conservation Association v. BLM

 Kaiser Eagle Mountain, Inc. (“Kaiser”) seeks to build a


landfill on a former Kaiser mining site near Joshua Tree
National Park (“Joshua Tree”).
 BLM prepared an EIS to support a land exchange with Kaiser for
various parcels surrounding the mine site
 NPCA challenged based on:
• Purpose and need too narrow – limited primarily to Kaiser’s proposal:
Therefore, range of alternatives too limited – only landfills
• Inadequate analysis of impacts to Bighorn sheep
• Inadequate analysis of eutrophication

586 F.3d 735 (9th Cir. ICF Proprietary and Confidential – Do Not Copy, Distribute, or Disclose
2009)
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National Parks and Conservation Association v.BLM
(Cont.)

 EIS - Purpose and Need


1. To develop a Class III, non-hazardous municipal waste landfill to meet the
projected long-term demand for environmentally sound landfill capacity in
Southern California
2. Provide a long-term income source from the development of a municipal waste
land fill
3. Find an environmentally viable use for the existing by-products at the Kaiser
Eagle Mountain Mine site, including use of existing aggregate and over-burden
4. Provide long-term land use and development goals and guidance for the town site
 Court held:
• Only # 1 was a BLM “need”, but the others were too narrowly focused on the
applicant’s “needs” thereby precluding alternatives that were eliminated from
detailed study
• Study of Bighorn Sheep was adequate
• Study of eutrophication was inadequate because it was scattered throughout
various parts of the EIS
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Center for Biological Diversity v. Kempthorne

 USFWS issued “incidental take regulations” under the ESA relating to


the effects of oil & gas operations
 Agency prepared an EA/FONSI that included an evaluation of climate
change impacts to polar bears
 CBD challenged alleging adequate evaluation of climate change and
need for an EIS
 Court held EA was adequate:
• EA took a “hard look” at the climate change impacts to polar bears, but
concluded that this action would not significantly effect them
• EIS was not necessary; although impacts to polar bears was “uncertain”,
they were not “highly uncertain” thereby triggering the need for an EIS

588 F.3d 701 (9th Cir. 2009)


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South Fork Band Council v. BLM

 BLM approved a gold mining project after preparation of an EIS


 South Fork Bank Council challenged alleging FLPMA and NEPA
violations and seeking preliminary injunction
 Court held that, as to NEPA (but not FLPMA) , the Council met the
requirements for a preliminary injunction - showing likely success on
the merits
 Court found that the EIS was inadequate:
• EIS failed to evaluate indirect air quality impacts of additional years of ore
transportation
• EIS improperly relied on the impacts in another EIS on a similar type of project
• EIS failed to evaluate the feasibility and likely success of mine de-watering
mitigation
• EIS used an improper method of evaluating PM 2.5 air quality emissions

588 F.3d 718 (9th Cir. 2009)


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Natural Resources Defense Council V. FAA

 FAA prepared an EIS for the proposal to close and relocate the
Panama City-Bay County Airport
 NRDC challenged
• Inadequate range of alternatives
• Inadequate cumulative and growth-inducing impacts
• Inadequate mitigation
 Court Upheld EIS
• FAA could eliminate alternatives that did not meet Purpose and Need (not
in market area) and were infeasible (could not obtain state wetlands
permits)
• Cumulative and growth inducing impacts were adequate
• Success of mitigation need not be demonstrated in EIS

564 F.3d 549 (2nd Cir. 2009)


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51
New Jersey Department of Environmental Protection v.
U.S. Nuclear Regulatory Commission

 NRC, relying on a “generic EIS” relating to nuclear facilities and a “site-


specific EIS” for this project, approved the re-licensing of a nuclear
power plant
 NJDEP challenged based on NRC’s failure to evaluate the risks and
impacts of a hypothetical terrorist attack
 Court held that the EIS was adequate
• There was no “reasonably close causal relationship” between the re-
licensing facility and a terrorist attack
• Discussion of impacts from other types of accidents was sufficient to cover
impacts from terrorist attacks
• Opponents failed to show how risks or impacts would be different
(Note: This case means there is a split in circuits – see San Luis Obispo
Mothers for Peace v NRC)

561 F. 3d 132( 3nd Cir., 2009)


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Coalition on West Valley Nuclear Wastes v. Chu

 DOE prepared an EIS and approved various waste management


activities (removal and safer interim storage) at the Western New York
Nuclear Service Center;
 EIS did not evaluate the impacts of closure of the entire site and
subsequent long-term disposal of the wastes
 CWVN challenged alleging that the closure and long-term disposal of
the entire Service Center were “connected actions” that should have
been included in the EIS
 Court held for DOE
• Waste management actions were not “connected” to the long-term closure
actions; nor where they “cumulative actions”
• They had “independent utility” from the closure of the entire site

592 F. 3d 306 (2nd Cir. 2009)


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NEPA in the Supreme Court
2008-2010

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U.S. Supreme Court Winter v. NRDC

 NRDC sued the Navy for failure to comply with NEPA and to enjoin the
use of sonar during training exercises in Southern California
 Navy sought and received “emergency” alternative arrangements”
authorized by CEQ
 U.S. District Court enjoined certain aspects of the training based on
possible violations of NEPA and harm to marine mammals
 9th Circuit held that CEQ’s “alternative arrangements” were not
appropriate, but vacated the injunction; balancing equities favored the
Navy
 U.S. Supreme Court affirmed vacating the injunction; but did not rule on
the NEPA issues.

129 S. Ct. 365 (2008)


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Geertson Seed Farms v. Monsanto Company

 On January 15, 2010, Supreme Court granted cert. to review 9th Circuit
preliminary injunction case
 Ninth Circuit upheld preliminary injunction prohibiting planting of
genetically-modified alfalfa pending US Dept. of Agriculture EIS
preparation
 Ninth Circuit
• Presumed plaintiffs would irreparable harm
• Did not hold evidentiary hearing on scope of injunction
 Monsanto petition to Supreme Court argued
• Winter case requires plaintiffs to show likelihood of irreparable harm
• Evidentiary hearing should have been held on scope of injunction

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The Future of NEPA

 Re-affirming NEPA’s fundamentals


 Continued emphasis on streamlining NEPA; especially for economic
stimulus projects
 Evolving NEPA documents to address contemporary issues
• GHG and climate change
• Sustainability
• Health and safety risks (e.g. terrorism, toxics, etc.)
 Continued vigilant oversight by concerned citizens and organizations
 Continued judicial oversight and interpretation

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Thank you for attending

NEPA Update 2010:


What a Difference a Year Makes

For additional information, please contact:

Ron Bass Al Herson


ICF International Sohagi Law Group
(541) 488-5767 (916) 834-7406
rbass@icfi.com aherson@sohagi.com

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