1. 1 Judicial Review Under NEPA Bob Malmsheimer April 1, 2006

2. 2 An Overview  Introduction  Prerequisites for Litigation  Judicial Review  Remedies  Questions

3. 3 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.

4. 4 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?”

5. 5 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.

6. 6 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 proposed 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.

7. 7 Prerequisites for Litigation: Venue  The Federal Court System  U.S. Supreme Court (1)  (Primarily appellate jurisdiction)  U.S. Courts of Appeals (13)  (Primarily appellate jurisdiction)  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.

8. 8 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.

9. 9 Prerequisites for Litigation: Standing (Con’t)  Redressibility: The injury would be remediated if the plaintiff got what she wanted (i.e., if her lawsuit prevailed).  Zone of Interest (APA §706): Plaintiff is in the zone of interest protected by the statute.  Association plaintiffs must show:  One of its members would have standing to bring the action (see above), and  The lawsuit relates to the purposes of the organization.

10. 10 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 (and ROD), 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.

11. 11 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 (ROD).  Studies, data, documents used to make NEPA decision.  Courts rarely consider other evidence.

12. 12 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 violated Congress’ clear intent, or  Agency’s decision was arbitrary and capricious.  Vermont Yankee  Judges should not substitute their decisions for permissible agency decisions.

13. 13 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.

14. 14 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?

15. 15 Questions?