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1 Farber, Freeman and Carlson's

Cases and Materials on Environmental Law, 8th ed.

American Casebook Series

West Law School 2009

2 PRLS 670ENVIRONMENTAL LAW

Webpage:

classweb.gmu.edu/jkozlows/670.htm

3 APA Rulemaking

Procedural Requirements

5 U.S.C. 553

4 Vermont Yankee Nuclear Powerv.

Natural Resources Defense Council

U.S. Supreme Court, 1978

5 NRDC challenges granting of license hearings excluded environmental effects

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of operations

to reprocess nuclear fuel or dispose of wastes 8/71

6 11/72 Agency instituted rulemaking

to consider enviro effects of nuclear fuel cycle

7 2/73 rulemaking procedures

no discovery or cross-examination

8 Enviro Survey & extensive background documents

available to public before hearing

9 all parties given reasonable opportunity to present position

written & oral statements incorporated into record

10 Commission approved procedures, issued final rule

concluding enviro. effects of nuke fuel cycle shown to be "relatively

insignificant"

11 Administrative agencies should be free to fashion their own rules of procedure

and to pursue methods of inquiry

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capable of permitting them to discharge their multitudinous duties

12 Basic tenet of administrative law

agencies should be free to fashion

their own rules of procedure

13 NRDC: APA merely est. lower procedural bounds

court may routinely require more than minimum

when agency rule addresses complex, technical, or "issues of great

public import."

14 APA public rule making

consult with industry advisory committees

consult organizations

hold public hearings

15 Considerations of practicality, necessity, & public interest

will naturally govern agency's determination

16 To extent which public proceedings should go forth

matters of great import should naturally be accorded more elaborate

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public procedures

17 Judicial review totally unpredictable, if reviewing agency proceedings to determine

whether, in Ct's opinion, procedures perfectly tailored to reach what ct

perceives as "best" or "correct" result

18 Inherent advantages of "informal rulemaking" would be lost

would compel agency to conduct all rule-making proceedings with full

procedures associated with adjudicatory hearings

19 Informal rulemaking need not be based solely on hearing transcript

agency need not hold formal hearing

20 Unwarranted judicial examination of perceived procedural shortcomings of rulemaking proceedings

would seriously interfere with process prescribed by Congress

21 Chevron, U.S.A., Inc. v.

NRDC

U.S. Supreme Court, 1984

22 intra-source offsets, "bubble" concept

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Whether EPA's statutory interpretation of "stationary source"

reasonable

23 allow States to treat all pollution-emitting devices within same industrial grouping

as though they were encased in a single "bubble"

24 Judicial review of Agency's construction of statute

whether Congress has directly spoken to precise question at issue

25 if intent of Congress if clear, that is the end of the matter

Court as well as agency must give effect

to unambiguously expressed intent of Congress

26 If Court determines Congress has not directly addressed precise question at issue

court does not impose its own construction on statute

as would be necessary in absence of Agency interpretation

27 Judicial inquiry, if statute silent or ambiguous

whether the Agency's answer is based on a permissible construction of

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statute

28 Court is not to determine whether in its view concept is "inappropriate”

in general context of program designed to improve air quality

29 Rather, whether Agency's view that it is appropriate is reasonable

in context of this particular program

30 Sec. 173 Clean Air Act required permits

for construction & operation of new or modified stationary sources in

nonattainment areas

31 Requires state agency to determine whether sufficient emissions reductions in region to offset emissions

from new source

also to allow further progress toward attainment

32 LAER (lowest achievable emission rate)

Major Stationary Source Sec. 111(a)(3)

any building, structure, facility, or installation which emits air pollution

33 Act does not make definition applicable to permit program

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whether definition sheds light on meaning of word "source" as anything

in statute

34 No affront to common English usage to take reference to "major facility" or "major source"

to connote an entire plant as opposed to its constituent parts

35 Meaning of Word ascertained in context of achieving particular objectives

words associated with it may indicate true meaning of the series is to

convey a common idea

36 Language may reasonably be interpreted to impose requirement on any discrete, but integrated, operation which pollutes

each enumerated item treated as encased in a bubble

37 Overlapping terms intended to enlarge rather than confine scope of agency power to regulate particular sources

in order to effectuate policies of Act

38 Sec. 302j 42 U.S.C. 7602

"major stationary source" stationary facility or source of air pollutants

emits or potential to emit 100 tons per year

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39 "Bubble" interpretation gives meaning to all the terms

or, whether EPA "plantwide" definition

violates legislative history & policy of Act

40 Legislative history silent on precise issue,

but consistent with view EPA to have broad discretion

in implementing policies of Act

41 Plantwide definition of source

consistent with allowance of reasonable growth

42 EPA offered reasonable explanation for conclusion

regs serve environmental objectives as well

43 Agency changing interpretation of term "source" from time to time

does not lead to conclusion that judicial deference should not be given

to agency's interpretation of statute

44 EPA's interpretation represents a reasonable accommodation of manifestly competing interests

and is entitled to deference

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45 Regulatory scheme is technical & complex

agency considered matter in detailed & reasoned fashion

decision involves reconciling conflicting policies

46 Congress intended to accommodate both economic & environmental interests

but did not do so with specificity required to resolve this issue

47 Judges are not experts in the field

not part of either political branch of Govt (Congress & Executive)

48 must sometimes reconcile competing political interests

but not on the basis of the judge's personal policy preferences

49 Challenge to agency construction of statutory provisions must fail, ifquestions wisdom of agency's policy

rather, than whether it is a reasonable choice

within gap left open to interpretation by Congress

50 National Environmental Policy Act (NEPA)

51 Hanleyv.

Mitchell

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U.S.Court of Appeals

2d Circuit, 1972

460 F.2d 640 (cert. denied)

52 Issue: whether NEPA compliance in construction of 9 story jail in Manhattan

53 GSA concluded no EIS, no substantial environmental impact

U.S. - "Major Federal Action" in NEPA refers to amount of cost,

planning, & time

but does not refer impact of project on environment

54 Court agrees courthouse, based on "terse" GSA memo,

will have no significant impact on environment

55 357 people already work in area, wildly varying architecture

56 Jail is different, GSA memo discusses,

water, sewer, & garbage

57 Memo contains no "hard look"

re squeezing jail into narrow area between 2 apt bldgs

(not mentioned)

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58 NEPA must be construed to include protection of the quality of life of city residents

re jail memo ignored environmental considerations in urban area

noise, traffic, congestion, crime

59 May not require full EIS

GSA not required to give same weight to environmental concerns

essential point is that GSA must actually consider them

60 Metropolitan Edison Co.

v.

People Against Nuclear Energy

U.S. Supreme Court, 1983

61 Issue: Whether NRC complied with NEPA

when it considered permit to resume operation of Three Mile Island

Unit 1 nuclear power plant

62 Licensing of 2 plants included preparation of Environmental Impact Statements

63 3/28/79 accident in unit 2 occurred

when unit 1 shut down for refueling

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64 Whether to consider psychological harm or other indirect effects of accident, or of renewed operation of TMI-1

human health effects, including psychological effects, cognizable under

NEPA

65 NEPA does not require agency to assess EVERY impact or effect of its proposed action

but ONLY the impact or effect

on the ENVIRONMENT

66 To trigger NEPA, must look to relationship between "effect" and CHANGE

in the PHYSICAL ENVIRONMENT

caused by the major federal action at issue

67 NEPA 102 "environmental effect" & "environmental impact" requirement

reasonably close causal relationship

between change in PHYSICAL ENVIRONMENT and effect at issue

68 Permit for renewed operation of TMI-1 on physical environmentlow-level radiation, fog from cooling towers), accident potential

already considered in EIS & EA

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69 Risk of an accident is NOT an effect on the physical environment

70 operation of facility is event in physical environment

psychological concerns of risks too far removed to trigger NEPA

71 NEPA not intended to give citizens general opportunity to air policy objections

fears, & concerns to perceived risks of federal actions

72 Political process, NOT NEPA,

provides appropriate forum

in which to air policy disagreements.

73 Hanlyv.

Kleindienst

[Hanly II]

U.S.C.A. 2d Cir 1972

471 F.2d 823

74 6/72 GSA submitted 25 pg Assessment of Environmental Impact re Jail

75 reflects detailed consideration of many factors

sets forth possible alternatives, none satisfactory

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concludes no significant impact

76 Judicial Review: Administrative Procedure ActAPA

arbitrary & capricious standard

meaning of term "significantly" in NEPA

77 CEQ guidelines echoed in GSA regs:

prepare EIS re proposed action

when environmental impact of proposed action

likely to be highly controversial

78 "Highly controversial"substantial dispute re size, nature, or effect of proposed action

rather than existence of opposition to a use

the effect of which is relatively undisputed

79 Whether major federal action will significantly affect quality of human environment

80 absent Congressional or administrative interpretation of termagency in charge vested with broad discretion

81 Agency required to review proposed action for,

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extent causes environmental effects in EXCESS of those created by

existing uses

82 AND review absolute quantitative adverse environmental effects of action itself

including cumulative harm

that results from contribution to existing adverse conditions or uses in

affected area

83 Adverse consequences

usually less significant

if conform to existing uses

84 Existing environment,frequently below an ideal standard,

represents a norm which cannot be ignored

absolute as well as comparative effects must be considered

85 Whether GSA assessment satisfies NEPA, APA review

area zoning includes "prisons"

86 Whether GSA identifiedmethods & procedures to ensure

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presently unquantified enviro values

given appropriate consideration

along with technical & economic considerations

87 Environmental Assessment (EA)

threshold determination of "significance"

review in general fashion

same factors studied in depth if EIS required

88 Environmental Assessment

Rudimentary procedures

designed to assure fair & informed preliminary decision

89 EA: essential information & adequate record

to prevent later changes without consideration of environmental

significance

as required by NEPA

90 Preliminary thresholddecision of significance by responsible agency

must give public notice re proposed major federal action

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give opportunity to submit relevant facts which might bear upon

threshold determination

91 Necessity of hearing depends upon circumstances & methods to develop relevant

information & understanding of proposed action

Precise procedural steps to be adopted

are better left to agency

92 Environmental Assessment (EA)

40 CFR 1501.3-1501.4

7/79 CEQ regs

93 Concise public document that briefly provides sufficient evidence & analysis

for deciding whether to product Environmental Impact Statement (EIS)

94 EA considers alternatives to proposed action

if no EIS, issues Finding of No Significant Impact (FONSI)

which is available to public

95 EIS Scoping:

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obtain early participation of other agencies & public in planning EIS

agencies with special jurisdiction or expertise are required to comment

96 Major interagency disagreements are referred to CEQ

CEQ may publish recommendations

or referral to President

97 Agency final decision on project (RoD) Record of Decision –

summarizes final actions

identify all alternatives considered in reaching decision

(40 CFR 1505.2)

98 RoD: specify environmentally preferable alternatives, & perferencesincluding economic & technological factors,

state whether all practicable means for minimization of environ. harm

(40 CFR 1505.2)

99 Scope and Timingof

Environmental Impact Statement

(EIS)

CEQ regs.

Title 40 CFR

100 Proposal

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40 CFR 1508.23

(important re timing)

101 Stage of development, agency has goal & actively preparing to make decision

on one or more alternative means to accomplishing goal

and effects can be meaningfully evaluated

102 Preparation of EIS on proposal should be timed

so final statement completed in time

to be included in any recommendation or report on proposal

40 CFR 1508.23

103 40 CFR 1502.5 Commence preparation of EISas close as possible to time agency developing

or is presented with proposal (per 1508.23)

so completed in time to be included in any recommendation or report

on proposal

104 Statement to be prepared early enough to serve practicallyas important contribution to decisionmaking process

will not be used to rationalize or justify decisions already made

40 CFR 1502.5

105 40 CFR 1501.2 Agencies SHALL integrate NEPA processwith other planning at earliest possible time

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to ensure planning & decisions reflect environmental values

to avoid later delays in the process and to head off potential conflicts

106 Scope: range of actions, alternatives, & impacts to be considered in EIS

may depend on relationships to other statements

1502.20 and 1508.28

107 Agency determination of Scope of Environmental Impact Statement consider:

3 types of actions

3 types of alternatives

3 types of impacts

40 CFR 1508.25

108 Connected Actions, closely related

should be discussed in same impact statement

109 Actions connected if:

(1) automatically trigger other actions which may require environmental

impact statements

110 Actions connected if:

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(2) cannot or will not proceed unless other actions are taken previously

or simultaneously

111 Actions connected if:

(3) are interdependent parts of a larger action and depend on the larger

action for their justification

112 Cumulative Actions, when viewed with other proposed actions

have cumulatively significant impacts

should, therefore, be discussed in same impact statement

113 Similar Actions, when viewed with other reasonably foreseeable or proposed agency actions

similarities provide basis for evaluating environmental consequences

together

such as common timing or geography

114 Agency may wish to analyze these actions in same impact statement

do so, when best way to assess adequately combined impacts of

similar actions, or reasonable alternatives to such actions

is to treat them in a single impact statement

115 Alternatives, which includes:

No action alternative

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Other reasonable courses of actions.

116 Mitigation measures(not in the proposed action)

Impacts

Direct

Indirect

Cumulative

117 Courts require agencies to take "hard look" at cumulative impacts

Synergistic impact of project should be taken into account at some

stage

certainly before last dam is completed

118 Courts take CEQ regs seriously in determining need for impact statement

look to factors like extent of current commitment

and specficityof future impacts

119 Mere allegation various federal actions have same general purpose

will not suffice as basis for requiring programmatic impact statement

120 DEPARTMENT OF TRANSPORTATION

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v.

PUBLIC CITIZEN

SUPREME COURT OF THE UNITED STATES

541 U.S. 752; 124 S. Ct. 2204; 159 L. Ed. 2d 60

June 7, 2004

121 whether the National Environmental Policy Act of 1969 (NEPA) requires the Federal Motor Carrier Safety Administration (FMCSA)

to evaluate the environmental effects of cross-border operations of

Mexican-domiciled motor carriers,

122 where FMCSA's promulgation of certain regulations

would allow such cross-border operations to occur.

123 Because FMCSA lacks discretion to prevent these cross-border operations,

we conclude that these statutes impose no such requirement on

FMCSA.

124 FMCSA, an agency within the Department of Transportation (DOT)

responsible for motor carrier safety and registration

125 "ensur[ing]" safety establishing minimum levels of financial responsibility for motor carriers

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prescribing federal standards for safety inspections of commercial

motor vehicles,

126 FMCSA has only limited discretion regarding motor vehicle carrier registration:

127 must grant registration to all domestic or foreign motor carriers

that are "willing and able to comply with" the applicable safety, fitness,

and financial-responsibility requirements.

128 FMCSA has no statutory authority to impose or enforce emissions controls

or to establish environmental requirements unrelated to motor carrier safety.

129 FMSCA ha no authority to address concerns about

the adequacy of Mexico's regulation of motor carrier safety

130 February 2001international arbitration panel

determined that the United States' "blanket refusal" of Mexican motor

carrier applications breached the United States' obligations under

NAFTA.

131 President made clear his intention to lift the moratorium on Mexican

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motor carrier certification

following the preparation of new regulations governing grants of

operating authority to Mexican motor carriers.

132 May 2001, FMCSA published for comment proposed rules

concerning safety regulation of Mexican motor carriers.

133 Application Rule

addressed the establishment of a new application form for Mexican

motor carriers that seek authorization to operate within the United

States.

134 Safety Monitoring Rule

addressed the establishment of a safety-inspection regime for all

Mexican motor carriers that would receive operating authority under the

Application Rule.

135 December 2001, Congress enacted

Department of Transportation and Related Agencies

Appropriations Act, 2002

136 Section 350

no funds appropriated under the Act could be obligated or expended to

review or to process any application by a Mexican motor carrier for

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authority to operate in the interior of the United States until…

137 until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers.

138 January 2002, acting pursuant to NEPA's mandates,

FMCSA issued a programmatic EA for the proposed Application and

Safety Monitoring Rules

139 FMCSA's EA evaluated the environmental impact associated with three separate scenarios

140 (1) President did not lift the moratorium;

(2) President did but where (contrary to what was legally possible)

FMCSA did not issue any new regulations

141 (3) Proposed Action Alternative, where the President would modify the moratorium

and where FMCSA would adopt the proposed regulations

142 EA considered the environmental impact in the categories of traffic and congestion, public safety and health, air quality, noise, socioeconomic

factors, and environmental justice.

143 Vital to the EA's analysis, however, was the assumption that there would be no change in trade volume between the United States and

Mexico

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due to the issuance of the regulations.

144 FMCSA concluded that the entry of the Mexican trucks was not an "effect" of its regulations,

145 did not consider any environmental impact that might be caused

by the increased presence of Mexican trucks within the United States.

146 particular environmental effects on which the EA focused

those likely to arise from the increase in the number of roadside

inspections of Mexican trucks and buses due to the proposed

regulations.

147 EA concluded that these effects (such as a slight increase in emissions, noise from the trucks, and possible danger to passing

motorists) were minor

could be addressed and avoided in the inspections process itself.

148 EA also noted that the increase of inspection-related emissions would be at least partially offset by the fact that the safety requirements would

reduce the number of Mexican trucks operating in the United States

149 EA concluded that the issuance of the proposed regulations wouldhave no significant impact on the environment,

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FMCSA issued a FONSI.

150 March 19, 2002, FMCSA issued the two interim rules, delaying their effective date until May 3, 2002,

to allow public comment on provisions that FMCSA added to satisfy the

requirements of § 350.

151 FMCSA relied on its EA and its FONSI to demonstrate compliance with NEPA.

152 petitions for judicial review of the Application and Safety Monitoring Rules,

arguing that the rules were promulgated in violation of NEPA

153 Court of Appeals agreed

concluded EA was deficient because it failed to give adequate

consideration to the overall environmental impact of lifting the

moratorium on the cross-border operation of Mexican motor carriers.

154 Court of Appeals, FMCSA was required to consider the environmental effects of the entry

of Mexican trucks

155 President's rescission of the moratorium was 'reasonably foreseeable'

at the time the EA was prepared and the decision not to prepare an

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EIS was made.

156 agency's decision not to prepare an EIS can be set aside only upon a showing

that it was "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." 5 U.S.C. § 706

157 respondents criticize the EA's failure to take into account the various environmental effects

caused by the increase in cross-border operations of Mexican motor

carriers.

158 Under NEPA, an agency is required to provide an EIS

only if it will be undertaking a "major Federal action," which

"significantly affects the quality of the human environment”

159 Under applicable CEQ regulations, "[m]ajor Federal action" is defined to "includ[e]

actions with effects that may be major and which are potentially subject

to Federal control and responsibility."

40 CFR § 1508.18 (2003).

160 "Effects" is defined to "include:

(a) Direct effects, which are caused by the action and occur at the

same time and place," and …

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161 "(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably

foreseeable." § 1508.8.

162 relevant question is whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by

Mexican trucks,

is an "effect" of FMCSA's issuance of the Application and Safety

Monitoring Rules

163 if not, FMCSA's failure to address these effects in its EA did not violate NEPA,

and so FMCSA's issuance of a FONSI cannot be arbitrary and

capricious.

164 promulgation of the regulations, the argument goes, would "caus[e ]" the entry of Mexican trucks (and hence also cause any emissions such

trucks would produce),

and the entry of the trucks is "reasonably foreseeable." 40 CFR §

1508.8 (2003).

165 the argument concludes, under the relevant CEQ regulations,

FMCSA must take these emissions into account in its EA when

evaluating whether to produce an EIS.

166 overlooks a critical feature of this case:

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FMCSA has no ability to countermand the President's lifting of the

moratorium

or otherwise categorically to exclude Mexican motor carriers from

operating within the United States

167 § 350 did restrict the ability of FMCSA to authorize cross-border operations of Mexican motor carriers,

but Congress did not otherwise modify FMCSA's statutory mandates.

168 FMCSA remains subject to the mandate

must certify any motor carrier that can show that it is willing and able to

comply with the various substantive requirements for safety and

financial

responsibility contained in DOT regulations

169 only the moratorium prevented it from doing so for Mexican motorcarriers before 2001

170 upon the lifting of the moratorium, if FMCSA refused to authorize a Mexican motor carrier for cross-border services, where the carrier was

willing and able to comply with the safety and financial rules, it would

violate § 13902(a)(1).

171 FMCSA must comply with all of its statutory mandates.

where an agency's action is considered a cause of an environmental

effect even when the agency has no authority to prevent the effect.

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172 insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations

173 NEPA requires "a reasonably close causal relationship" between the environmental effect and the alleged cause.

174 inherent in NEPA and its implementing regulations is a "rule of reason,"

175 ensures that agencies determine whether and to what extent to prepare an EIS

based on the usefulness of any new potential information to the

decisionmaking process.

176 Where the preparation of an 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 an agency to

prepare an EIS.

177 clear that the causal connection between FMCSA's issuance of the proposed regulations and the entry of the Mexican trucks

insufficient to make FMCSA responsible under NEPA to consider the

environmental effects of the entry.

178 NEPA EIS requirement serves two purposes.

First, "[i]t ensures that the agency, in reaching its decision, will have

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available, and will carefully consider, detailed information concerning

significant environmental impacts."

179 Second, it "guarantees that the relevant information will be made available to the larger audience

that may also play a role in both the decisionmaking process and the

implementation of that decision.

180 Requiring FMCSA to consider the environmental effects of the entry of Mexican trucks would fulfill neither of these statutory purposes.

181 FMCSA has no ability categorically to prevent the cross-border operations of Mexican motor carriers,

the environmental impact of the cross-border operations would have no

effect on FMCSA's decisionmaking

182 FMCSA simply lacks the power to act on whatever information might be contained in the EIS.

Similarly, the informational purpose is not served.

183 "informational role" of an EIS is to "giv[e] the public the assurance that the agency 'has indeed considered environmental concerns in its

decisionmaking process,

184 perhaps more significantly, provid[e] a springboard for public comment" in the agency decisionmaking process itself,

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185 purpose here is to ensure that the "larger audience," can provide input as necessary to the agency making the relevant decisions

186 But here, the "larger audience" can have no impact on FMCSA'sdecisionmaking,

since FMCSA simply could not act on whatever input this "larger

audience" could provide.

187 We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions,

the agency cannot be considered a legally relevant "cause" of the

effect.

188 Hence, under NEPA and the implementing CEQ regulations,the agency need not consider these effects in its EA

when determining whether its action is a "major Federal action."

189 Because the President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers,

and because FMCSA has no discretion to prevent the entry of Mexican trucks,

190 EA did not need to consider the environmental effects arising from the entry.

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191