Judicial Review Under NEPA What a Long, Hard Trip It Is. Bob Malmsheimer March 30, 2004

An Overview Introduction Prerequisites for Litigation Judicial Review Remedies Questions

Introduction: The Parties Plaintiff: The party commencing a civil lawsuit, who alleges that she was injured by the agency’s actions. Most NEPA plaintiffs are public interest organizations and citizen groups. Defendant: The party against whom a legal action is brought in civil court: always at least one federal agency. NEPA always involves civil court litigation. Generally natural resource agencies: DOA, DOI, ACE, but also DOT. DOJ (ENR Division) defends lawsuits.

Introduction: Types of NEPA Litigation Whether an agency properly applied a categorical exclusion. Whether an agency properly decided not to prepare an EIS (or Supplemental EIS). Whether the EIS was adequate. Note: U.S. Supreme Court has held that NEPA is a procedural, not a substantive, statute. Question is “Did the agency follow the proper NEPA procedures?” NOT: “Did the agency choose an environmentally sound alternative?”

Prerequisites for Litigation: Introduction Plaintiffs must overcome numerous requirements to win a NEPA case: Plaintiffs must meet jurisdictional requirement before a court can review an agency’s decision. In court, plaintiffs must prove agency action violated NEPA. Even if plaintiffs prevail, their remedies are very limited.

Prerequisites for Litigation: Cause of Action Plaintiff must have a legal basis for their cause of action. NEPA contains no enforcement provisions Administrative Procedure Act Courts use the APA as legal basis for judicial review of federal agency compliance with NEPA. NEPA litigation usually involves “informal” agency actions. Exception: judicial review of CEQ regulations. APA Section 702: “a person suffering legal wrong because of agency action, or adversely affected by agency action within the meaning of the relevant statute” has a cause of action.

Prerequisites for Litigation: Venue The Federal Court System U.S. Supreme Court (1) (Primarily appellate jurisdiction) U.S. Courts of Appeals (13) U.S. District Courts (94) (Primarily original jurisdiction – trial courts) Generally NEPA litigation occurs in the U.S. District Court where proposed action is located or in U.S. District Court for the District of Columbia. But some statutes specify U.S. Court of Appeals.

Prerequisites for Litigation: Standing Must be a connection between the plaintiff and the lawsuit. Individual Plaintiffs must show: Injury-in-fact: Plaintiff must suffered an injury-in-fact (Sierra Club v. Morton). Causation: The cause of plaintiff’s injury must be directly related to defendant’s behavior.

Prerequisites for Litigation: Standing (Con’t) Redressibility: The injury would be remediated if the plaintiff got what she wanted (if her lawsuit prevailed). Zone of Interest (APA §706): Plaintiff is in the zone of interest protected by the statute. Association plaintiffs must show all of above PLUS: One of its members would have standing to bring the action, and The lawsuit relates to the purposes of the organization.

Prerequisites for Litigation: Other Issues Must exhaustion administrative remedies Plaintiff must go through all administrative procedures before she can appeal to U.S. District Court. Controversy must be ripe Courts will not interfere in NEPA process until Final EIS, FONSI, or “irreparable injury” will occur. Controversy must not be moot Controversy no longer exists because action completed. Common Law Doctrine of Laches does not apply. Plaintiff unreasonably delays initiating lawsuit.

Judicial Review: Standard of Review Many standards of review. But most courts examine whether the agency’s decision was: “Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” or “Without observance of procedure required by law” (5 USC §706(2)). Courts review the Administrative Record. Studies, data, documents used to make NEPA decision. Courts rarely consider other evidence.

Judicial Review: Deference to Agencies U.S. Supreme Court: Courts should defer to agencies’ decisions Progressive ideas about agencies. Chervon v. NRDC Courts should defer to agency decisions unless: Agency has violated Congress’ clear intent, or Agency decision is arbitrary and capricious. Vermont Yankee Judges should not substitute their decisions for permissible agency decisions.

Judicial Review: How Often Do Agencies Win? The U.S. Supreme Court has supported the federal agency in EVERY NEPA case it has heard. Agencies are more successful in U.S. Courts of Appeals and U.S. District Courts. All of the important early NEPA decisions were in the U.S. Courts of Appeals. But note: Published cases v. unpublished cases.

Remedies: An Injunction Courts do not award money damages in NEPA cases. But Note: Equal Access to Justice Act. If plaintiff wins, court declares agency’s NEPA obligations. Courts instruct agencies what to do. Courts sometimes issue preliminary injunctions. Note: In 1970s, some courts awarded permanent injunctions, but U.S. Supreme Court later declared NEPA a procedural statute. So why would a plaintiff file a NEPA lawsuit?

Questions?