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We seek to set our course by the star of age-old values, not
short-term expediencies; to waste less in the present and provide more for the
future; to leave a legacy that keeps faith with those who left the Earth to
us.
President Bill Clinton
The National Environmental Policy Act (NEPA) provides a broad mandate
for federal agencies 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.-
NEPA requires federal agencies to integrate environmental values into
their decisionmaking processes by considering the environmental impacts of
their proposed actions and reasonable alternatives to those actions. The form
of these considerations is an environmental assessment (EA) or an environmental
impact statement (EIS).
Title II of NEPA, which created the Council on Environmental Quality
(CEQ) to oversee federal agency implementation of the act, requires the Council
to report to the President annually on the conditions and trends in
environmental quality. The 1993 edition of Environmental Quality is the 24th
CEQ Annual Report.
NEPA Glossary
Section 102(2)© of the National Environmental Policy Act of 1969
requires federal agencies to prepare a -detailed statement- for proposed major
actions which significantly affect the quality of the human environment. The
statement must include the environmental impacts of the proposed action,
alternatives to the proposed action, and any adverse environmental impacts
which cannot be avoided should the proposal be implemented. In 1978 the CEQ
issued binding regulations which implement the procedural provisions of NEPA.
The following are key terms:
. Environmental Assessment (EA). A concise public document that
analyzes the environmental impacts of a proposed federal action and provides
sufficient evidence to determine the level of significance of the impacts.
. Finding of No Significant Impact (FONSI). A public document
that briefly presents the reasons why an action will not have a significant
impact on the quality of the human environment and therefore will not require
preparation of an environmental impact statement.
. Environmental Impact Statement (EIS). The -detailed
statement- required by Section 102(2)© of NEPA which an agency prepares
when its proposed action significantly affects the quality of the human
environment.
. Record of Decision (ROD). A public document signed by the
agency decisionmaker at the time of a decision. The ROD states the decision,
alternatives considered, the environmentally preferable alternative or
alternatives, factors considered in the agency's decision, mitigation measures
that will be implemented, and a description of any applicable enforcement and
monitoring programs.
. Categorical Exclusion (CE). Categories of actions which
normally do not individually or cumulatively have a significant effect on the
human environment and for which, therefore, an EA or an EIS is not required.
. Cumulative Impact. The impact on the environment which
results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable actions regardless of what agency, federal
or nonfederal, or what person undertakes the action.
Conditions and Trends
With the passage of NEPA in 1969, Congress recognized that
technological, social, and economic forces were having a profound influence on
the quality of the human environment. The act was prescient in its anticipation
of future environmental problems that the nation would face. An effective
linkage of NEPA sections 101 and 102 provides the framework for agencies to
integrate environmental values into their programs and projects.
Section 101. Sets forth the nation's environmental goals and a
broad national policy to achieve them, and serves as a blueprint for
considering a range of environmental effects of proposed federal actions.
Section 102(2). Provides the process to ensure that federal
agency decisionmakers are aware of Section 101 policies and the environmental
consequences of proposed federal actions.
Section 102(2)©. Requires federal agencies to prepare
-detailed statements- for actions -significantly affecting the quality of the
human environment.- The detailed statements must include the environmental
impacts of the proposed action, any adverse environmental effects which cannot
be avoided, alternatives to the proposed action, the relationship between local
short-term uses of man's environment and the maintenance and enhancement of
long-term productivity, and any irreversible and irretrievable commitments of
resources which would be involved should the proposed action be implemented.
CEQ Regulations. In 1978 CEQ promulgated regulations
implementing the procedural provisions of NEPA (40 C.F.R. Parts 1500-1508).
These regulations reflect the vision of the act by defining the human
environment-the natural and physical environment-and the relationship of people
with the environment. The NEPA charge in 1969 to preserve and maintain an
environment that supports diversity laid the groundwork for the biodiversity
issue of the 1990s. Today NEPA provides a powerful tool for maintaining the
sustainability and biodiversity of ecosystems, including human economies and
communities (see Chapter 6).
Program Accomplishments
In 1993 the CEQ acknowledged efforts by federal agencies to integrate
environmental values early in their planning and sought ways to integrate the
NEPA process at home and abroad. In 1992, federal agencies filed 513 draft,
final, and supplemental environmental impact statements.
Environmental Impact Statements filed
by Federal agencies, 1979-1992
Agency 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991
1992
Agriculture 172 104 102 89 59 65 117 118 75 68 89 138 145 129
Commerce 54 53 36 25 14 24 10 8 9 3 5 8 13 12
Defense 1 1 1 1 1 0 0 0 2 0 0 0 0 1
Air Force 8 3 7 4 6 5 7 8 9 6 11 19 20 19
Army 40 9 14 3 6 5 5 2 10 8 9 9 21 14
COE 182 150 186 127 119 116 106 91 76 69 40 48 45 56
Navy 11 9 10 6 4 9 8 13 9 6 4 19 9 6
Energy 28 45 21 24 19 14 4 13 11 9 6 11 2 15
EPA 84 71 96 63 67 42 16 18 19 23 25 31 16 4
GSA 13 11 13 8 1 0 4 0 1 3 0 4 3 15
HUD 170 140 140 93 42 13 15 18 6 2 7 5 7 2
Interior 126 131 107 127 146 115 105 98 110 117 61 68 64 79
Transportation277 189 221 183 169 147 126 110 101 96 80 100 87 129
TVA 9 6 4 0 2 1 0 1 0 0 0 3 0 3
Other 98 44 76 55 22 21 26 15 17 20 23 18 24 29
TOTAL: 1273 966 1033 808 677 577 549 521 455 430 370 477 456 513
Environmental Impact Statements filed by
Federal agencies during 1992
Totals by Totals
Agency Subject Matter
Department of Agriculture 129
Natural Gas and Oil: Driling and Exploration 8
Forestry and Range Management 87
Comprehensive Management Plans 1
Parks, Recreation Areas, Wilderness Areas, 10
National Seashores
Land Acquisition or Disposal, Management/ 2
Jurisdiction Transfer
Watershed Protection and Flood Control 7
Municipal/Industrial Water Supply Systems 1
(Non Multi-Purpose Impoundments)
Irrigation, Desalination of Return Flows, 1
Agriculture Water Supply
Other Water Projects 1
Mining 2
Mining (Non-Energy) 8
Railroads 1
Department of Commerce 12
Wetlands, Estuary and Ocean Use (Sanctuary, 2
Disposal, etc.)
Fisheries 10
Department of Defense 1
Defense Systems 1
Department of the Air Force 19
Military Installations 15
(Conventional, Chemical, Nuclear, etc.)
Defense Systems 3
Nuclear Development (e.g., Fuel, Reactors) 1
Department of the Army 13
Military Installations 10
(Conventional, Chemical, Nuclear, etc.)
Defense Systems 1
Buildings for Federal Use 1
Housing Subdivisions and New Communities 1
Department of the Navy 6
Military Installations 4
(Conventional, Chemical, Nuclear, etc.)
Space Programs 1
Dredge and Fill 1
Totals by Totals
Agency Subject Matter
Department of the Marine Corps 1
Military Installations 1
(Conventional, Chemical, Nuclear, etc.)
Department of the Defense Nuclear Agency 1
Power Facilities: Conservation and Other 1
Department of the Army, Corps of Engineers 56
Military Installations 2
(Conventional, Chemical, Nuclear, etc.)
Beach Erosion, Hurricane Protection, 6
River/Lake Bank Stabilization
Navigation 7
Dredge and Fill 5
Watershed Protection and Flood Control 23
Other Water Projects 5
Fisheries 2
Bridge Permits 2
Natural Gas and Oil: Transportation, 1
Pipeline Storage
Roads 1
Special Development (Expos, Bicentennials, 1
Olympics, etc.)
Mining 1
Department of Energy 15
Regulatory: Allocation, Pricing 1
Building, Federally Licensed or Assisted 2
(Including Production Facilities)
Power Facilities: Transmission 4
Power Facilities: Fossil 1
Power Facilities: Hydroelectric 2
Power Facilities: Conservation and Other 2
Natural Gas and Oil: Transportation, Pipeline, 2
Storage
Radioactive Waste Disposal 1
Environmental Protection Agency 4
Sewage Treatment and Sewage Facilities 1
Wetlands, Estuary, and Ocean Use 2
(Sanctuary, Disposal, etc.)
Industrial Wastewater Facilities, Mining 1
Pollution Control
Totals by Totals
Agency Subject Matter
General Service Administration 15
Buildings for Federal Use 12
Buildings, Federally Licensed or Assisted 3
(Including Production Facilities)
Department of Housing and Urban Development 2
Buildings, Federally Licensed or Assisted 2
(Including Production Facilities)
Department of the Interior 79
Buildings, Federally Licensed or Assisted 2
(Including Production Facilities)
Natural Gas and Oil: Drilling and Exploration 9
Natural Gas and Oil: Transportation, Pipeline, 2
Storage
Municipal and Industrial Water Supply System 3
(Not Multi-Purpose Impoundments)
Multi-Purpose Impoundments 2
Watershed Protection and Flood Control 1
Land Acquisition or Disposal, Management 6
Jurisdiction Transfer
Parks, Recreation Areas, Wilderness Areas, 14
National Seashores
Forestry and Range Management 12
Mining (Non-Energy) 12
Comprehensive Resource Management 3
Housing Subdivisions and New Communities 1
Wildlife Refuges, Fish Hatcheries 4
Bridge Construction 1
Power Facilities: Transmission 1
Dredge and Fill 2
Radioactive Waste Disposal 1
Miscellaneous Information 2
Hazardous and Toxic Substance Disposal 1
Interstate Commerce Commission 2
Railroads 2
Nuclear Regulatory Commission 0
Tennessee Valley Authority 3
Pesticides, Herbicides Use 2
Miscellaneous Information 1
Totals by Totals
Agency Subject Matter
Department of Transportation 129
Road Construction 89
Airport Improvements 19
Bridge Permits 6
Mass Transportation 13
Aircraft, Ships and Vehicles 2
Federal Energy Regulatory Commission 6
Natural Gas and Oil: Transportation, Pipeline, 2
Storage
Power Facilities: Hydroelectric 4
Department of Justice 14
Buildings for Federal Use 14
Department of Veterans Affairs 5
Cemetery Development 4
Medical Center Development 1
Total Federal 0EISs: 512
Source: U.S. Environmental Protection Agency, Office of Federal
Activities, unpublished data, 1993.
Federal Environmental Quality Awards
The CEQ regulations require federal agencies to develop NEPA procedures
adapted to their individual regulatory and program activities. Federal agencies
are striving to better integrate environmental values in their planning
processes through the NEPA process. To recognize and encourage such efforts,
the CEQ, in partnership with the National Association of Environmental
Professionals (NAEP), announced in 1993 the recipients of the first Federal
Environmental Quality Awards for the year 1992.
The awards recognize excellence in federal agency decisionmaking
pursuant to the National Environmental Policy Act.
Each federal department and agency was asked to nominate one of its
actions or programs that demonstrates exemplary performance in reaching
environmental goals and values. A committee of prominent environmental
professionals evaluated the nominations and made recommendations to the CEQ
Chairman, who made the final selection. Two winners were selected in 1992:
. Tennessee Valley Authority. The TVA prepared an EIS for its Lake
Improvement Plan, which is a strategic guide by which the agency operates the
dams and reservoirs of the Tennessee River and its tributaries. The TVA
incorporated extensive public participation throughout the NEPA process and
made the public a full partner in its decisionmaking.
. U.S. Air Force. Under its Program for Environmental Excellence, the
Air Force uses an Environmental Impact Analysis Process (EIAP) to integrate
NEPA values throughout the decisionmaking process. The Air Force senior
leadership considers EIAP to be its most valuable planning tool.
In 1993 the CEQ announced the following award winners:
. U.S. Army Corps of Engineers, Wilmington District. The Wilmington
District developed an environmental impact statement for its -Atlantic
Intracoastal Waterway Bridge Replacement Projects- to guide decisions about
replacements of deteriorating and unsafe bridges. The District incorporated
public concerns early in the planning process and altered its plans based on
its NEPA analysis and public involvement. The analysis effectively used video
simulation to display the environmental effects of alternative approaches to
accomplishing the objectives. A monitoring plan was established to ensure the
commitments outlined in the EIS were honored.
. Minerals Management Service, Department of the Interior. The MMS,
which administers the nation's Outer Continental Shelf (OCS) natural gas and
oil program, was cited for its commitment to excellence in environmental
decisionmaking for 1993. This recognition was based on its development of an
environmental impact analysis program to effectively implement the NEPA by
integrating its planning process, incorporating extensive public involvement,
committing to interdisciplinary environmental analysis, maintaining a staff of
in-house experts committed to the scientific integrity of the analysis, and
conducting monitoring to ensure implementation of defined mitigation measures.
NEPA Oversight
In 1993 the CEQ sponsored a number of initiatives as part of its NEPA
oversight responsibilities. Among the highlights for the year were social and
economic analysis in conjunction with environmental justice, cumulative effects
analysis, and international efforts.
Howard University Conference on Social and Economic Impact
Analysis. The CEQ implementing regulations reflect recognition by NEPA of
the interrelationship of social and economic concerns with the environment. The
act requires federal agencies to consider social and economic impacts in EISs
when such impacts are interrelated with physical environmental effects.
Increasingly, evidence suggests that environmental impacts fall
disproportionately on disadvantaged communities (see Chapter 8). The Clinton
Administration has made environmental justice a priority, including the
assessment of federal activities on minority and low-income communities when
such analysis are required under NEPA. To examine methods for integrating
social and economic analysis into the NEPA, the CEQ, in cooperation with Howard
University in Washington, D.C., brought federal agencies together to discuss
environmental assessments. The July 1993 workshop was a first step in assessing
federal agency practices as they affect environmental justice.
NEPA and Native Americans Workshop. In addition to improving the
analysis of impacts, another way to address environmental justice concerns is
to ensure that affected communities have the tools to fully participate in the
NEPA process. In 1993 the CEQ held the first in a series of NEPA workshops
aimed at increasing the capacity of tribal environmental officials to use NEPA
to assess the environmental effects of actions. Capacity-building can increase
the meaningful participation of tribes in the decisionmaking process. The
workshop was held in cooperation with the Tulalip tribe in Marysville,
Washington, and drew participants from tribes in Washington, Oregon, Montana,
and Idaho.
Cumulative Effects Analysis. Federal agencies routinely consider
the direct and indirect environmental effects of their actions, yet they
consistently identify cumulative effects analysis as the most difficult
methodological challenge under the NEPA. Cumulative effects include the effects
on the environment which result from the incremental impact of an action when
added to other past, present, and reasonably foreseeable future actions taken
by an agency, federal or nonfederal, or an individual. With a growing emphasis
on an ecosystem approach to management, NEPA and CEQ regulations are crucial
for analysis by agency decisionmakers concerned about the long-term economic
and environmental health of a region. In 1993 the CEQ began preliminary work on
a cumulative effects handbook, which will have contributions from a number of
NEPA practitioners from federal agencies. The handbook will address the
following challenges associated with cumulative effects analysis:
. Assessing a proposed action at the appropriate scale-programmatic,
policy, or project;
. Establishing an environmental baseline database;
. Determining the scope of geographic and temporal boundaries of the
analysis; and
. Coordinating efforts with all players in an ecological region to
determine the impacts of a proposal in context with future plans for the
region.
International Activities
In 1993 the CEQ took part in several activities concerning
international environmental impact assessment (EIA).
Environmental Impact Assessment in a Transboundary Context. In
1992 the United States signed the Convention on Environmental Impact Assessment
in a Transboundary Context, negotiated under the auspices of the Economic
Commission for Europe (ECE). In 1993 the CEQ, Department of State, and EPA
worked together to develop implementing procedures for the convention.
Technical Assistance. Since NEPA is the world's first
environmental impact assessment statute, numerous countries have modeled their
EIA procedures after NEPA and the CEQ regulations. Accordingly other countries
often turn to the CEQ for assistance in developing an EIA process. In 1993 the
CEQ met with delegations from a number of countries including Japan, China,
Australia, the former Soviet Union, and African nations. In addition the CEQ
assisted in developing and teaching a course entitled, -Principles and Policies
of Environmental Impact Assessment,- to government and nongovernment officials
in the Republic of Turkey.
International Association of Impact Assessment. The CEQ
continues to provide support and leadership to the International Association of
Impact Assessment. In 1993 the CEQ presented a paper at the IAIA conference in
Shanghai, China, on using EIA as a tool for sustainable development.
NEPA Training
Continuing its focus on NEPA training initiatives, the CEQ participated
in federal courses and workshops, in addition to conducting its own NEPA
courses. Highlights of NEPA training in 1993 include the following:
Duke University Course on Implementing NEPA. For the second
consecutive year, the CEQ cosponsored a week-long NEPA course at the Duke
University School of Environment. Through this short course, which is offered
twice annually, 150 mid-level and senior managers have received NEPA training.
Department of Justice NEPA Course. The CEQ participated in
teaching a NEPA course offered by the Legal Education Institute of the
Department of Justice. The course, which is targeted to government lawyers, was
held in February 1993 in Washington, D.C..
American Bar Association NEPA Course. CEQ and Department of
Justice lawyers assisted in organizing a NEPA course as part of the American
Law Institute of the American Bar Association held in April 1993 in Washington,
D.C.
NEPA Implementation by Federal Agencies
In 1993 the CEQ continued to work with federal agencies to implement
NEPA regulations.
Emergency Alternative Arrangements. Pursuant to 40 CFR + 1506.11
of the implementing regulations, the CEQ provides for alternative NEPA
compliance arrangements in the event an agency needs to take an action with
significant environmental impacts. In 1993 the CEQ consulted with the following
agencies regarding emergency arrangements:
. Animal and Plant Health Inspection Service. In May 1993 the Animal
and Plant Health Inspection Service-Animal Damage Control (APHIS-ADC) informed
the CEQ of emergency circumstances identified by the Federal Aviation
Administration (FAA) regarding laughing gull-aircraft interactions on the
grounds of the John F. Kennedy International Airport (JFK) in New York. The
agency had conducted bird-control activities at the airport for a number of
years and was in the process of preparing a programmatic EIS for its
gull-control program at the airport. In April 1993 the FAA issued an emergency
advisory that drew attention to the severe bird-aircraft strike hazard
conditions at the airport and called for -implementation of an effective bird
mitigation program.- After discussions with representatives of other state and
federal agencies involved in the issue and a site visit to JFK, the CEQ issued
a number of conclusions and recommendations regarding arrangements in the
context of the immediate action, the programmatic EIS, and the ultimate
decisions to be made.
. Department of Energy. In October 1993 the CEQ approved the Department
of Energy (DOE) proposal regarding alternative NEPA arrangements for the
acceptance of 144 spent nuclear fuel elements from a reactor in Belgium and
their shipment to the United States. The Belgian reactor was filled to storage
capacity with spent nuclear fuel, and if not relieved of at least 144 spent
fuel elements, the result would be a potentially permanent shutdown of the
reactor or shipment of the elements to Scotland for reprocessing. Based on
discussions with the Department of State and the written opinion of that
department, the CEQ concurred with the DOE that failure by the United States to
commit to accepting the spent fuel rods could lead to the potential diversion
of materials in the fuel to nuclear weapons production. Such a diversion would
undermine the long-standing U.S. nonproliferation policy of minimizing the use
of highly enriched uranium for civil programs worldwide. Other foreign research
reactors could lose confidence in the U.S. commitment to the Reduced Enrichment
for Research and Test Reactors program. Since the acceptance of spent fuel is a
key element of this program, a U.S. refusal might lead other cooperating
countries to cease cooperation. The matter came to a close in 1993, when the
Belgians rejected the U.S. offer to accept the spent nuclear fuel elements.
Referral. The CEQ regulations at 40 CFR Part 1504 establish
procedures for referring to the Council -interagency disagreements concerning
proposed major federal actions that might cause unsatisfactory environmental
effects.- Not later than 25 days after receipt of the referral, the CEQ must
respond, such as publishing findings and recommendations. In January 1993 the
CEQ received a referral submitted by the Advisory Council for Historic
Preservation (ACHP) regarding Federal Highway Administration (FHWA) funding for
the completion of Route 710 (Long Beach Freeway) in South Pasadena, California.
The ACHP raised concerns over what it views as significant adverse impacts of
the project on historic properties in the area. In April 1993 the CEQ
determined that, based on commitments by the FHWA and the concurrence of the
ACHP, the referral would be held in abeyance until after the Mitigation and
Enhancement Advisory Committee created by the California Department of
Transportation, the proponent of the proposed freeway construction, completes a
report. The referral is currently pending.
Agency EIA Procedures. In 1993 after consultations with the CEQ,
a number of federal agencies published proposed new or revised environmental
impact assessment procedures. The agencies include the Air Force; Coast Guard;
Office of Surface Mining, Reclamation, and Enforcement; Bureau of Mines;
Federal Emergency Management Agency; Federal Energy Regulatory Commission; and
U.S. Enrichment Corporation.
NEPA Consultations. As part of its NEPA oversight responsibilities, the
CEQ consulted with various federal agencies on environmental issues, taking the
following actions:
. Advised the Department of the Interior on strategies for proceeding
with a draft EIS for a proposed program called Rangeland Reform 1994. Work
included legal advice to DOI regarding the adequacy of the NEPA analysis and
extensive advice to the EIS team regarding the adequacy of the environmental
and economic analysis.
. Advised the National Security Council and Arms Control and
Disarmament Agency on an EIS, in conjunction with the Administration's
submission of the Chemical Weapons Convention to the U.S. Senate for advice and
consent.
. Consulted with the Department of the Interior and the U.S. Forest
Service to address NEPA implementation issues for their Pacfish Strategy, which
addresses immediate and long-term actions to assure proper management of
anadromous fish habitat in the Pacific Northwest.
. Worked with the Federal Energy Regulatory Commission to develop a
more systematic and programmatic approach to addressing environmental impacts
of the licensing and relicensing of hydropower projects.
. Provided consultation on NEPA compliance issues for post-Midwest
flood work, at the request of the FEMA, Department of Housing and Urban
Development, and Federal Railroad Administration.
Selected 1993 NEPA Case Law
Although 1993 NEPA-related court decisions covered a variety of issues,
two key cases were decided which addressed the issue of the application of the
NEPA for proposed federal actions having environmental impacts abroad.
Extraterritorial Application
Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir.
1993). In 1991 the National Science Foundation (NSF), which had been burning
food wastes in an open landfill at a research facility in Antarctica, decided
to halt its open burning practices and develop an alternative method of
disposal. Thereafter the NSF decided to resume burning in an -interim
incinerator- until a state-of-the-art incinerator could be delivered.
The Environmental Defense Fund (EDF) objected, alleging that the
planned incineration might produce highly toxic pollutants which could be
hazardous to the environment. The EDF filed suit seeking declaratory and
injunctive relief, arguing that the NSF failed to consider fully the impacts of
its action under NEPA. The NSF argued that the presumption against the
extraterritorial application of U.S. statutes applied in this case, therefore,
NEPA did not apply.
The D.C. Circuit Court of Appeals explained that extra-territoriality
is a jurisdictional concept providing that U.S. statutes, whether prescribed by
federal or state authority, apply only to conduct occurring within, or having
effect within, the territory of the United States. The primary purpose of the
presumption against extraterritoriality is -to protect against the unintended
clashes between our laws and those of other nations.- Equal Employment
Opportunity Commission v. Arabian American Oil Co., 111 S. Ct. 1227 (1991).
The court also noted:
[by definition, an extraterritorial application of a statute
involves the regulation of conduct beyond U.S. borders. Even where the
significant effects of the regulated conduct are felt outside U.S. borders, the
statute itself does not present a problem of extraterritoriality, so long as
the conduct which Congress seeks to regulate occurs largely within the United
States.
The court noted that the application of the NEPA to federal actions is
not limited to actions occurring in, or having effects in, the United States.
Rather the NEPA is designed -to control the decisionmaking process ... not the
substance of agency decision- that takes place almost exclusively in the United
States. The court found, therefore, that the presumption against
extraterritoriality did not apply in this case.
In holding that the NEPA did apply to the NSF actions in the Antarctic,
the court ultimately relied on Antarctica's unique status as a place which was
not a sovereign territory:
We find it important to note, however, that we do not decide today
how NEPA might apply to actions in a case involving an actual foreign sovereign
or how other U.S. statutes might apply to Antarctica. We only hold that the
alleged failure of NSF to comply with NEPA before resuming incineration in
Antarctica does not implicate the presumption against extraterritoriality.
Administration Response to EDF v. Massey. Subsequent to this
decision, an interagency group established by Presidential Review Directive
(PRD) 23, and chaired by the National Security Council, was formed to assist in
developing an Administration position on EIAs overseas. The PRD reviewed
various tools for addressing environmental effects of activities of federal
agencies taken abroad. As part of the PRD, the CEQ chaired an interagency
working group on public participation and alternatives analysis.
NEPA Coalition of Japan v. Aspin, 837 F. Supp 466 (D. D.C.
1993). The district court held that NEPA does not apply to U.S. Navy operations
at three bases in Japan. The court relied on the presumption against
extraterritorial application of statutes and distinguished Environmental
Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993), noting that Massey
expressly refrained from deciding whether NEPA applies to federal actions in
foreign sovereign territory. Alternatively the court found that, even if NEPA
did apply, no EIS would be necessary because -plausible assertions have been
made that EIS preparation would impact upon the foreign policy of the United
States,- and foreign policy interests outweigh the benefits from preparing an
EIS.
NEPA and NAFTA
Public Citizen v. Office of U.S. Trade Representative, 5 F.3d
549 (D.C. Circ. 1993). Trade negotiations among the United States, Canada, and
Mexico resulted in the North American Free Trade Agreement (NAFTA). The
agreement was signed by the President and his counterparts on December 17,
1992. Under the Trade Acts, the U.S. Trade Representative (USTR) serves as the
President's chief negotiator on trade matters. The President submitted the
NAFTA together with implementing legislation and related materials to Congress
under the -fast track- approval process, limiting the time both houses can
debate and conclude on the legislation as submitted.
Public Citizen alleged that the Office of the United States Trade
Representative (OTR) violated NEPA by failing to prepare an EIS to accompany
the submission of NAFTA to Congress. At that time the negotiations on the trade
agreement had not yet concluded, and the court noted that because the agreement
was not yet complete, there was no final agency action on NAFTA. All NEPA
actions are brought under the Administrative Procedure Act (APA), which
requires final agency action.
After the treaty had been completed, plaintiffs filed suit, and the
district court held that final agency action was then present because the
treaty had been signed, negotiations completed, and under -fast track,- the
agreement could not be changed before submission to Congress. The district
court ordered the OTR to complete an EIS -with all deliberate speed.-
The U.S. Court of Appeals overturned the district court's decision,
holding that despite the OTR's completion of its role as NAFTA negotiator:
the final agency action challenged in this case is the submission of
NAFTA to Congress by the President...[H]is action, and not that of the OTR,
will directly affect Public Citizen's members.
Accordingly because the President is not an agency, the D.C. Circuit
held that his actions are not reviewable under the APA.
Standing
Fund for Animals, Inc. v. Espy, 814 F. Supp. 142 (D. D.C. 1993).
Fund for Animals brought a suit under NEPA challenging a decision of the
Department of Agriculture to fund, approve, and implement a research program on
the communicability of brucellosis in bison. The program involved the capture
of a number of pregnant wild bison from outside the boundary of their habitat,
their transportation by truck 2,000 miles to Texas, and their ultimate
slaughter.
Fund for Animals claimed standing based in part on a -procedural
injury- suffered based on defendant's alleged failure to prepare an
environmental analysis under the NEPA. The court rejected this argument but
held plaintiffs had standing based on the charitable and scientific nature of
the organization and its commitment to preserving animal species in their
natural habitats. The court also found that plaintiffs had shown a likelihood
of success on the merits and that defendant was not likely to succeed on its
claim, invoked post hoc, that the research qualified for a categorical
exclusion.
Resource Limited, Inc. v. Robertson, 8 F.3d 1394 (9th Cir.
1993). Resource Limited challenged the Flathead National Forest Land and
Resource Management Plan and the forest-wide EIS. Resource Limited asserted the
EIS was inadequate, and disputed the conclusion of the Forest Service that
implementation of the plan would not jeopardize the survival of the several
endangered species living in the forest. The district court determined that
Resource Limited had no standing and that the matter was not ripe for
adjudication.
The Ninth Circuit Court of Appeals, following its prior decisions in
Idaho Conservation League v. Mumma, 956 F.2d 1508 (1992), and other
similar cases, reversed the district court on the issues of standing and
rifeness. The court held that plaintiffs were not required to allege a
site-specific injury when challenging a forest-wide plan:
[I]f plaintiffs did not have standing to challenge a
non-site-specific EIS, the program as a whole could never be reviewed. -To the
extent that the plan pre-determines the future, it represents a concrete injury
that plaintiffs must, at some point, have standing to challenge.- Quoting Mumma
at p. 1516.
The Ninth Circuit also rejected the argument that a forest-wide plan
was not ripe for review until the Forest Service authorizes a specific timber
sale pursuant to the plan. The court held that, since the grievance was with
the overall plan, the case was ripe for review.
The court then went on to consider the challenges to the adequacy of
the EIS and found that the EIS contained a reasonably thorough discussion of
cumulative impacts from both federal and nonfederal action, contained a
comparative analysis of water quality impacts under each alternative that was
adequate to allow the decisionmakers and public to make an informed choice, and
was based on consideration of an adequate range of timber harvest levels.
Region 8 Forest Service Timber Purchasers Council v. Alcock, 993
F.2d 800 (11th Cir. 1993). Plaintiffs, which consisted of the Region 8
Forest Service Timber Purchasers Council and three timber purchase companies,
filed this complaint for declaratory and injunctive relief, alleging that the
Forest Service violated the NEPA, the Endangered Species Act (ESA), and
National Forest Management Act (NFMA) by implementing emergency measures to
protect the nesting and foraging habits of the endangered red-cockaded
woodpecker. The District Court dismissed the NEPA and ESA claims for lack of
standing and rejected the NFMA claims by granting the government's motion for
summary judgment.
The court of appeals affirmed, holding that the Council lacked standing
under all three statutes. The court found the Council's allegations of economic
injury insufficient for purposes of standing because of the following findings:
. Relief for the Council's claims of contractual injuries could be
obtained only under the Contract Disputes Act; and
. The Council's claims of a right to a certain amount of future timber
incorrectly assumed a right to harvest a set amount of timber under a Forest
Plan.
The court rejected the Council's claims of -quality of life- injuries
as -simply attenuated versions of the economic injuries we have already
considered.- The court further rejected the Council's claim to have suffered
harm to environmental interests as improperly based on assertions of
environmental interests of employees. Finally the court rejected the Council's
allegations of procedural injuries for purposes of standing because, like the
allegations held insufficient by the Supreme Court in Lujan v. Defenders of
Wildlife, 112 S.Ct. 2130 (1992), the allegations of procedural injury had no
connection to a separate cognizable concrete interest.
Decision to Supplement an EIS
Portland Audubon Society v. Babbitt, 998 F.2d 705 (9th Cir.
1993). Environmental groups sued for declaratory injunctive relief challenging
the decision of the Secretary of the Interior not to supplement the Timber
Management Plans (TMPs) prepared between 1979 and 1983 based on new information
concerning the effect of those plans on the northern spotted owl. The district
court enjoined logging operations on Bureau of Land Management (BLM) land with
owl habitat pending preparation of a Supplemental Environmental Impact
Statement. The Secretary of the Interior and other defendants appealed.
The Department of the Interior contended that its 1987 decision not to
prepare a supplemental EIS was not arbitrary and capricious in light of the
information available at the time of the decision and that legal developments
occurring after 1987 relieved it from subsequently incurring an obligation to
prepare an EIS. The court of appeals found that the record amply supported the
district court's conclusion that defendant's decision not to supplement the
EISs was arbitrary and capricious. The court stated that decisions made by the
BLM in its TMPs:
involved a course of action that was to be taken over a ten-year
period...the body of scientific evidence available in 1987 concerning the
effect of continued logging on the ability of the owl to survive as a species
raised serious doubts about the BLM's ability to preserve viability options for
the owl if logging continued at the rates and in the areas authorized by the
TMPs...A supplemental EIS should have been prepared because the scientific
evidence available to the Secretary in 1987 raised significant new information
relevant to environmental concerns, information bearing on the impacts arising
from ongoing implementation of the land use decisions driven by the original
TMPs.
The court also rejected defendant's argument that the court's holding
in Headwaters, Inc. v. BLM, 914 F.2d 1174 (9th Cir. 1990), reh-g denied, 940
F.2d 434 (1991), supports the conclusion that the BLM decision not to
supplement the EISs was reasonable. The court distinguished Headwaters, which
held that a supplemental EIS was not necessary for a single site-specific sale
(and a single pair of owls), as opposed to the instant case involving a
challenge to the decision not to supplement EISs underlying the TMPs that
control a large number of land use decisions. The new information relating to
the possible extinction of a species through the systematic implementation of a
timber-sale program throughout BLM lands influenced the finding.
West Branch Valley Flood Protection Ass-n v. Stone, 820 F. Supp.
1 (D. D.C. 1993). In 1975 the Army Corps of Engineers (COE) prepared an EIS for
the construction of a levee-dike system on the Susquehanna River and Bald Eagle
Creek in Pennsylvania. The Corps later proposed revising the levee design and
prepared an environmental assessment/finding of no significant impact for the
proposed plan. Plaintiff's sued the Army Corps of Engineers for failure to
submit a supplemental environmental impact statement, alleging that the EA
inadequately considered important environmental impacts.
The court explained that supplemental EISs are triggered when new
information presents a -seriously different picture of the environmental
landscape- such that another in-depth look at the environment is necessary.-
The court further stated that in reviewing the agency decision not to
supplement, the court will reverse the decision only if the action was
arbitrary and capricious. Accordingly the court held that the Corps was not
required to prepare a supplemental EIS because of the following findings:
. The new information did not present a seriously different picture of
the environmental landscape;
. The Corps discussion of mitigation measures demonstrated that the
agency took a realistic look at the adverse impacts of the project;
. The Corps discussion of alternative designs was sufficient; and
. The threat of future Superfund liability resulting from the project
was too speculative to support a claim of arbitrary and capricious action.
Standard for Exception to Categorical Exclusion
City of New York v. Interstate Commerce Commission, 4 F.3d 181
(2d Cir. 1993). The City of New York sought review of an Interstate Commerce
Commission (ICC) order granting applications of four bus carriers to provide
service to the Borough of Manhattan. The ICC had adopted a categorical
exclusion for motor carrier licensing in its NEPA procedures, thus precluding
any further environmental analysis.
At the ICC proceedings to consider the applications, the City filed
protests alleging that the increased bus service would worsen the already
unhealthy levels of air pollution in Manhattan. The ICC concluded that the City
had not demonstrated that an environmental analysis under the NEPA was required
and that it was the City's responsibility to take appropriate steps to address
the air pollution problems that it raised in its protests. The ICC subsequently
granted the licenses.
The City sought review in the court of appeals, where it argued that
the ICC failed to consider the cumulative impacts of the proposal with other
operations having environmental effects in the same geographic area. The court
pointed out that the case did not pose the question of whether cumulative
effects must be considered in determining whether the NEPA applied to a
particular agency action. Rather the court stated it was a question of whether
the ICC properly refused to except from its categorical exclusion of all motor
vehicle licensing these four particular bus license applications.
The court found that the City had not shown and made no attempt to show
that granting the licenses would involve the -extraordinary circumstances-
necessary to trigger the ICC exception to its categorical exclusion. The court
thus denied plaintiff's petition for review of the ICC's decisions.
Cumulative Effects Analysis
Alpine Lakes Protection Society v. U.S. Forest Service, 838 F.
Supp. 478 (W.D. Wash. 1993). Plaintiff brought this action to compel the Forest
Service to consider the connected and cumulative effects associated with the
issuance of one of seven special use permits for temporary access roads when
deciding whether an EIS was required. The Forest Service had determined that
neither an EA or an EIS was required because the action qualified as a
categorical exclusion. Plaintiff argued that the Forest Service improperly
limited its environmental considerations to a .23 mile section of the road
which crossed federal land.
The district court held that:
. The access road permit and timber management activities were
connected actions and therefore must be considered together in determining
whether an EIS is required; and
. The seven access road permits were cumulative in nature, as the
access road and the timber harvesting activities were -links in the same bit of
chain- and therefore, connected actions.
The court emphasized that -the question of whether the related action
must be considered does not turn on whether the action is federal or
non-federal in nature.- The court concluded that the Forest Service's failure
to consider the connected actions when determining that the access road alone
qualified for a categorical exclusion was arbitrary and capricious. The court
also determined that the seven applications for access roads were cumulative in
nature and should be considered in a single EIS. The court reasoned that,
although the Forest Service considered the cumulative impacts on wildlife
species in a biological evaluation, it had not considered the cumulative
impacts on any other aspect of the environment. For example the court noted
that the projects had the potential to -interact on a variety of scales and
resources,- particularly since the access roads were located in the same
watershed, creating a potential for cumulative impacts on water quality and
fisheries. The court granted plaintiffs motion for summary judgment, and
remanded the case for further proceedings. | 
