Domestic Ocean & Coastal Law Summer School July 18, 2005 Lecture #4 Denise Antolini, Associate Professor Director, Environmental Law Program William S. Richardson School of Law University of Hawai`i at Mānoa

Greenpeace v. NMFS Introduction to NEPA (p. 493) Judicial review under NEPA

National Environmental Policy Act of 1969 (1970) History of NEPA Inspired by Senator Henry Jackson (Washington State) –Bill introduced in Summer 1969 Senators aware of Cuyahoga River fire, Santa Barbara oil spill, and growing environmental awareness –Intended to be “the most important and far-reaching environmental and conservation measure ever enacted by Congress” –Created a “national policy” of environmental protection Act Passed by Congress - December 1969 Signed by President Nixon - January 1, 1970 Became a Federal Statute Shortest env. law – 3 pages! Codified at 42 U.S.C. [United States Code] §§ a

National Environmental Policy Act (1970) Applies to all federal agencies “major federal actions” “significantly affecting the quality of the human environment” Fundamentally changes decision-making procedure of all federal agencies to protect the environment Address environmental concerns in a “preventative and anticipatory” way by requiring evaluation of consequences before action is taken

National Environmental Policy Act (1970) Environmental Impact Statements... “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.

National Environmental Policy Act (1970) “Action forcing” through procedure: process and product Not a regulation of business or industry but agencies Based on general policy of proactive environmental planning

National Environmental Policy Act (1970). Strict procedural requirements Public participation in process Agency considers the analysis Improved and more transparent agency decisionmaking Ultimately, better balance between environment and development Citizens suits under the APA

National Environmental Policy Act (1970) Terminology EIA – Environmental Impact Assessment – refers to entire process Categorical Exclusion – “out” -- no EIA process needed EA – Environmental Assessment – first phase, short FONSI – Finding of No Significant Impact – “out” (with convincing explanation) EIS – Environmental Impact Statement – second phase, longer and detailed, includes alternatives Mitigation – actions to minimize impacts Public Comment Proces Draft process Supplemental – new information

Steller Sea Lions

Pollock...

Think of Alaska pollock as the fish that doesn’t get any respect. Almost everybody eats it, but hardly anybody knows it. Pollock are the favorite fish of fast-food fryers, which serve it up as fish n’ chips, fish sandwiches and now even fish tacos. And, of course, pollock are the stuff of surimi, the ubiquitous fish paste that is used to make “seafood analogs,” the ersatz shellfish products that look and taste a lot like the real thing— at a fraction of the price. Alaska pollock is the largest food fish resource in the world. More than 3 million tons of Alaska pollock are caught each year in the North Pacific from Alaska to northern Japan. Russia is the world’s largest pollock producer. Overfishing, however, has reduced Russia’s annual pollock catch from more than 4 million tons to less than 2 million tons. In Alaska, however, pollock catches have been quite consistent at about 1.3 million tons a year, almost all of it from the Bering Sea. Alaska pollock can grow to 15 pounds or more, but most of the fish caught commercially are less than 2 pounds, so most pollock fillets are 2-4 ounces in size.

Greenpeace

Next Class... Whaling Japan Whaling Society v. American Cetacean Society