NEPA Making Lawyers Rich

8/9/2019 NEPA Making Lawyers Rich

1/58

ICF Proprietary and Confidential Do Not Copy, Distribute, or Disclose

Association of Environmental Professionals

2010 Annual Conference

NEPA Update 2010:

What a Difference a Year Makes

Presented by:

Ron Bass, JD, AICPSenior Regulatory Specialist

ICF International

Al Herson, JD, FAICPAttorney

Sohagi Law Group


2/58


2

After 40 YearsNEPAs 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 theworld


3/58


3

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


4/58


4

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


5/58


5

Funding Paths Overview

Congress

States(Governor)

FederalAgencies

States

(Governor)

StateAgencies

StateAgencies

NEPA NONEPA

Somestateshave littleNEPAlaws

$$$ $$$


6/58


6

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-ofway, etc.)

Does a little NEPA apply ? If so, which document? What is the status?

Can a joint document be prepared?


7/58


7

NEPA and Recovery Act Funded Projects

January 2009 December 2009(includes both completed and pending actions)

Type of NEPA

Action

Number of Federal

Actions

Approx. % of all

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 Congresshttp://ceq.hss.doe.gov/nepa/nepanet.htm


8/58


8

Shovel-Ready Funding Priority

1. No NEPA necessary

2. Project subject to CATEX

3. Project can be tiered to prior EA or EIS4. EA or EIS (and other permitting) completed

5. EA in preparation

6. EIS in preparation

7. NEPA required but not yet started


9/58


9

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, similarprojects

Agency specific waivers under non-NEPA legislative authority


10/58


10

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


11/58


11

Executive Order 13514

Federal Leadership in Environmental, Energy and EconomicPerformance (Oct 5, 2009)

Energy Efficiency

GHG reduction

Water conservation and management

Recycling and pollution prevention

Sustainability

Livable communities

Transparency in government

NEPA provisionFederal 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


12/58


12

NEPAs 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.


13/58


13

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 andGreenhouse Gas Emissions

Draft Guidance for NEPA Mitigation and Monitoring

Draft Guidance on Establishing and Applying Categorical Exclusions underNEPA


14/58


14

NEW NEPA Website

http://ceq.hss.doe.gov/current_developments/new_ceq_nepa_guidance.html


15/58


15

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 theEPA reporting requirements under the Clean Air Act (e.g. stationarysources with annual, direct emissions of 25,000 metrics tons of CO2 or

more) the GHG emissions identified in those reporting requirements shouldbe included in the NEPA document

Three specific modeling approaches recommended

For projects less that 25,000 metric tons, utilize scoping and inter-agencyconsultation to determine whether to quantify GHG emissions and howthey should be evaluated.

In evaluating GHG emissions agency should consider upstream anddownstream activities, but limited to those that are reasonablyforeseeable


16/58


16

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 affectedenvironment, which would serve as the no-action alternative

Focus on the long-term aspects of a project that are more likely toexperience the effects of climate change in the future

Rely on mitigation measures (e.g. adaptation measures) based onadaptive management and monitoring so as to flexible enough to bemodified in the future as conditions change

Maximize the use of incorporation by reference of existing and emergingstudies to describe the effects of climate change, but that for and toevaluate impacts at meaning scales (e.g. regional and local) based on thatdata.


17/58


17

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 effective3. Public participation and accountability should be encouraged through

proactive disclosure of, and access to, agency mitigation monitoringreports and documents.

Emphasizes both implementation monitoring and effectivenessmonitoring

Suggests that failed mitigation may require preparation of supplementalNEPA document

Encourages mitigation to rely on principles of adaptive management


18/58


18

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 andsubstantiating 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 continuedusefulness.


19/58


19

Updated Principles & Guidelines for Water

and Related Resource Implementation Studies

(CEQ Dec. 3, 2009)

1. Achieving Co-Equal Goals: protect & restore the environment & improve theeconomic well-being of the nation (maximize net national economic,environmental, and social benefits).

2. Considering Monetary and Non-Monetary Benefits: Consider both monetaryand non-monetary benefits to justify and select a project (e.g. fish and wildlifebenefits, 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 fulland equal consideration to nonstructural approaches to floodplainmanagement.

4. Increasing Transparency and Good Government Results: Use of bestscience, peer review, and full transparency with more rigorous study process.


20/58


20

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.)


21/58


Ninth Circuit Court of Appeals Cases

Other Circuit Courts of Appeals Cases

NEPA Applicability Cases


22/58


22

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 BLMland. Neither agency has ever conducted an environmental analysis(either EIS or EA) on these operation

Greater Yellowstone challenged for failure to comply with NEPA, basedon environmental impacts of increased disease risk

Court held NEPA compliance was not required:

As to some USFS feeding grounds, the issue was moot because agencyalready conducted the required analysis

As to other USFS feeding grounds, there was no ongoing federal actionand the six-year APA statute of limitations had run

As to BLM feed grounds there was no on-going federal action based onlyannual review of ten-year-old MOU between agency and state.

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


23/58


23

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 preemptingcertain 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)


24/58


Categorical Exclusion Cases


25/58


25

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-wideadministrative procedures, programs, processes, or instructions.

California and other states challenged the rule and argued that relianceon CATEX was an improper distortion of an exemption intended forroutine, procedural actions

Court held that use of CATEX was unlawful to support a majorregulatory change affecting millions of acres of roadless areas

According to the court: such a substantial regulatory change is neitherroutine nor merely procedural.

575 F. 3d 999 ( 9th Cir. 2009)


26/58


EA/FONSI Cases


27/58


27

Alaska Wilderness League v. Kempthorne

Minerals Management Service's ("MMS") prepared an EA/FONSI tosupport approval of an exploration plan submitted by Shell Offshore Inc.("Shell") to drill multiple offshore exploratory oil wells over a three-yearperiod in the Alaskan Beaufort Sea.

AWL challenged, alleging that the EA/FONSI was inadequate andseeking 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)


28/58


28

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 tobowhead 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, despitepresence 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.


29/58


29

White Tanks Concerned Citizens v. Strock

USACE granted 404 permit authorizing fill activities for a 10,105 acreresidential, master-planned community in a desert area near WhiteTank 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 activitiesdirectly affecting the 787 acres of washes and 83.6 acres of uplandsadjacent to the washes

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


30/58


30

White Tanks

(Cont.)

Court held that because the projects viability is founded on the Corpsissuance of a Section 404 permit, the entire project is within the Corpspurview

Washes are dispersed throughout the project area in such a way that, asa practical matter, no large-scale development could take place withoutfilling wetlands ( e.g. Save our Sonoran)

Washes filled here would not be confined to particular portions of the site(e.g. Wetlands Action Network)

Developers no-action alternative not feasible because the result wouldnot be a cohesive master-planned community. The result would beisolated clusters of development, contrary to the intent of proposed project

Permit denial would force abandonment of master plan


31/58


31

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-basedterrorist 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)


32/58


32

City of Las Vegas v. Federal Aviation Administration

FAA prepared an EA/FONSI to support making changes to thedeparture routes at McCarran International Airport in Las Vegas

City and citizens challenged:

EA did not sufficiently evaluate the safety risks to neighboring residentsfrom re-routing and speed reductions

EA analysis of air and noise impacts was inadequate

Court held:

FAAs 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)


33/58


33

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 grazingwas adequately evaluated

EA could rely on data extrapolated from other areas rather than on-sitetesting

Grazing would occur in winter and recreation in summer

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


34/58


34

State of New Mexico ex. Rel Richardson v. BLM

BLM approved and oil and gas lease on the Otero Mesa (ChihuahuanDesert grassland); based on RMP without any site-specific NEPAanalysis

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)


35/58


35

Sierra Club v Wagner

USFS prepared Environmental Assessments and approved two forestmanagement 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 anddetailed) 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)


36/58


36

Ohio Valley Environmental Coalition v.

Aracoma Coal Co.

U.S. Army Corps issued 404 permits allowing fill related to surface coalmines (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)


37/58


37

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 sufficientcontrol over remainder of project which was subject to SMCRA (givingstates control over the mining)

Mitigation was adequate to support a FONSI; details not improperly

deferred Cumulative analysis was adequate


38/58


38

City of Dallas v. Hall

USFWS prepared an EA/FONSI for establishing an acquisitionboundary for an National Wildlife Refuge (which precluded the City andTexas 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 reservoiralternative

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)


39/58


39

Missouri Coalition for the Environmentalv. FERC

FERC prepared an EA on the reconstruction of a hydroelectricgenerating facility that had collapsed

Missouri Coalition challenged alleging EA should have look at theimpacts of re-licensing at the end of current license

Court held that EA was adequate

Reconstruction does not make re-licensing a reasonably foreseeablefuture action for cumulative impact purposes

Reconstruction and re-licensing are separate actions and need not beconsidered together

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


40/58


EIS Cases


41/58


41

Center for Biological Diversity

v. U.S. Department of Interior

BLM entered into a land exchange with a mining company; exchangewould transfer mining land out of federal ownership and thus notsubject to the Mining Act of 1872

BLM prepare an EIS, but concluded that the impacts of the miningwould be the same under all alternatives including the no-action (e.g.no exchange)

CBD challenged alleging that mining impacts would be much worseunder private ownership with no controls than under federal ownershipand controls

Court held that the EIS was inadequate for failure to include ameaningful comparison of alternatives

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


42/58


42

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

Forest Service prepared an EIS to support adoption of a forestmanagement project that included timber harvesting, thinning andhabitat management.

In evaluating cumulative impacts, the FS tiered off of a WatershedAnalysis which relied on an aggregate approach to past actions ratherthan using the detailed list approach

LWD challenged alleging that the aggregate approach was improperin view of prior decisions, including Lands Council v. Powell (LandsCouncil v. Powell (Lands Council I), 395 F.3d 1019, 1028 (9th Cir.

2005) in which the 9th

Circuit required a detailed catalogue of pastactions

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


43/58


43

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

(Cont.)

Court held:

aggregate approach was reasonable because CEQ issued reasonableguidance supporting such an approach (Guidance on Consideration ofPast Actions in Cumulative Effects Analysis. June 2005)

EIS was, nevertheless inadequate because, NEPA does not allow tieringfrom a non-NEPA document and the Watershed Analysis was neversubject to NEPA


44/58


44

Wildwest Institute v. Bull

Forest Service prepared an EIS for a hazardous fuel reduction project

Wildest Institute challenged based on:

Agencys 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 itsmethodology and conclusions

Data was properly explained and reported; therefore EIS was adequate

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


45/58


45

Ecology Center v. Castenada

U.S. Forest Service approved 9 timber sales each with either an EIS orEA/FONSI

Ecology Center challenged alleging

inadequate cumulative impact analysis

Poor data quality and inappropriate presentation of old-growth data andimpacts

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)


46/58


46

River Runners for Wilderness v. Martin

National Park Service, based on an EIS, approved permit for thecontinued use of motorized rafts and support equipment in GrandCanyon National Park

River Runners challenged alleging inadequate cumulative impact noiseimpact analysis

Court held that EIS specifically considered the cumulative effects ofnoise on the river environment, including noise from river traffic,helicopters, and aircraft overflights

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


47/58


47

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 forvarious parcels surrounding the mine site

NPCA challenged based on:

Purpose and need too narrow limited primarily to Kaisers 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.

2009)


48/58


48

National Parks and Conservation Association v.BLM

(Cont.)

EIS - Purpose and Need1. To develop a Class III, non-hazardous municipal waste landfill to meet the

projected long-term demand for environmentally sound landfill capacity inSouthern California

2. Provide a long-term income source from the development of a municipal wasteland fill

3. Find an environmentally viable use for the existing by-products at the KaiserEagle 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

applicants needs thereby precluding alternatives that were eliminated fromdetailed study

Study of Bighorn Sheep was adequate

Study of eutrophication was inadequate because it was scattered throughoutvarious parts of the EIS


49/58


49

Center for Biological Diversity v. Kempthorne

USFWS issued incidental take regulations under the ESA relating tothe effects of oil & gas operations

Agency prepared an EA/FONSI that included an evaluation of climatechange impacts to polar bears

CBD challenged alleging adequate evaluation of climate change andneed for an EIS

Court held EA was adequate:

EA took a hard look at the climate change impacts to polar bears, butconcluded 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)


50/58


50

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 NEPAviolations 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 onthe 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-wateringmitigation

EIS used an improper method of evaluating PM 2.5 air quality emissions

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


51/58


51

Natural Resources Defense Council V. FAA

FAA prepared an EIS for the proposal to close and relocate thePanama 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 (notin 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)


52/58


52

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 nuclearpower plant

NJDEP challenged based on NRCs failure to evaluate the risks andimpacts 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 ObispoMothers for Peace v NRC)

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


53/58


53

Coalition on West Valley Nuclear Wastes v. Chu

DOE prepared an EIS and approved various waste managementactivities (removal and safer interim storage) at the Western New YorkNuclear 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 havebeen included in the EIS

Court held for DOE

Waste management actions were not connected to the long-term closureactions; nor where they cumulative actions

They had independent utility from the closure of the entire site

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


54/58


NEPA in the Supreme Court

2008-2010


55/58


55

U.S. Supreme Court Winter v. NRDC

NRDC sued the Navy for failure to comply with NEPA and to enjoin theuse of sonar during training exercises in Southern California

Navy sought and received emergency alternative arrangementsauthorized by CEQ

U.S. District Court enjoined certain aspects of the training based onpossible violations of NEPA and harm to marine mammals

9th Circuit held that CEQs alternative arrangements were notappropriate, but vacated the injunction; balancing equities favored theNavy

U.S. Supreme Court affirmed vacating the injunction; but did not rule onthe NEPA issues.

129 S. Ct. 365 (2008)


56/58


56

Geertson Seed Farms v. Monsanto Company

On January 15, 2010, Supreme Court granted cert. to review 9th Circuitpreliminary injunction case

Ninth Circuit upheld preliminary injunction prohibiting planting ofgenetically-modified alfalfa pending US Dept. of Agriculture EISpreparation

Ninth Circuit

Presumed plaintiffs would irreparable harm

Did not hold evidentiary hearing on scope of injunction

Monsanto petition to Supreme Court argued

Wintercase requires plaintiffs to show likelihood of irreparable harm

Evidentiary hearing should have been held on scope of injunction


57/58


57

The Future of NEPA

Re-affirming NEPAs fundamentals

Continued emphasis on streamlining NEPA; especially for economicstimulus 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


58/58


58

Thank you for attending

NEPA Update 2010:What a Difference a Year Makes

For additional information, please contact:

Ron BassICF International

(541) [email protected]

Al Herson

Sohagi Law Group

(916) [email protected]

Documents

NEPA Making Lawyers Rich