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Judicial Review Under NEPA

Bob MalmsheimerApril 1, 2006

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An Overview

Introduction Prerequisites for Litigation Judicial Review Remedies Questions

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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.

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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?”

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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?

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Questions?