JUDICIAL REVIEW UNDER NEPA. Colleen G. Warren Law Seminars International NEPA/SEPA CLE January 25, 2006. OUTLINE OF PRESENTATION. STANDING STANDARD OF REVIEW SCOPE OF REVIEW INJUNCTIONS STATUTE OF LIMITATIONS. I. STANDING.
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Colleen G. Warren
Law Seminars International
January 25, 2006
“Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a ‘personal stake in the outcome of the controversy’ as to ensure that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution . . .”
Sierra Club v. Morton, 405 U.S. 727 (1972)
To satisfy Article III standing requirements under the U.S. Constitution, a plaintiff must show that: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001)
“[T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727 (1972)(alleged injury directly felt only by those who use Mineral King and Sequoia National Park for recreation or aesthetic values; Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney Development)
While the personal injury requirement will be met only if the alleged harm is “distinct and palpable . . . and not abstract or conjectural or hypothetical” Allen v. Wright, 468 U.S. 737 (984), failure to follow procedures designed to ensure that the environmental consequences of a project are adequately evaluated is a sufficient injury. Friends of the Earth v. U.S. Navy, 841 F.2d 927, 931 (9th Cir. 1988)
To establish causation, the injury must be "fairly traceable to the challenged action of the defendant[,]" Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 180, and cannot be the result of the "independent action of some third party not before the court." Sierra Club v. U.S. Fish and Wildlife Service, 235 F.Supp.2d 1109, 1122 (D.Or. 2002)
The injury must be "fairly" traceable to the challenged action, and relief from the injury must be "likely" to follow from a favorable decision. Allen V. Wright, 468 U.S. 737, 751 (1984). However, a plaintiff asserting inadequacy of government agency’s environmental studies need not show that further analysis would result in a different conclusion. It suffices that agency’s decision could be influenced by environmental considerations that NEPA requires an agency to study. Ocean Advocates v. U.S. Army Corps of Engr’s, 402 F.3d 846 880 (9th Cir. 2005)
A NEPA challenge must also meet the standing requirements for review under the APA which require a plaintiff to:
(1) Identify some agency action that adversely affects the plaintiff, and
(2) establish that he/she has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute.
When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the APA, the “agency action” must be final agency action. 5 U.S.C. § 704; Lujan v. National Wildlife Fed., 497 U.S. 871 (1990)(organization failed to identify any particular agency action that was the source of the alleged injury to its members)
To be adversely affected or aggrieved for purposes of obtaining judicial review of agency action under the APA, a plaintiff must establish that the injury complained of (the aggrievement, or the adverse effect) falls within the “zone of interests” sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
Purpose of NEPA is to protect the environment, not economic interests. Therefore, a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA. Nevada Land Assoc. v. U.S. Forest Service, 8 F.3d 713, 716 (9TH Cir.1993). See also, Kanoa, Inc. v. Clinton, 1 F.Supp.2d 1088 (1988) (plaintiff did not assert environmental injury, but alleged only economic injury resulting from disruption of its business and thus did not establish standing under the APA)
A membership organization can sue in its representative capacity when: (1) its members would otherwise have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153 (9th Cir. 1998)
“The National Environmental Policy Act of 1969 (“NEPA”) is a procedural statute designed to ensure that federal agencies taking major actions affecting the quality of the human environment ‘will not act on incomplete information, only to regret its decision after it is too late.’”
Sierra Club v. Bosworth, 2005 WL 3096149 (N.D. Cal. 2005), quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989).
See Klamath-Siskiyou Wildlands Ctr. V. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir.2004)
“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
1. Where necessary to explain the agency’s action;
2. To determine whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision
3. When agency relied on documents not in record;
4. When necessary to explain technical terms or complex subject matter; and
5. When showing of agency bad faith
See Animal Defense Council v. Hodel, 840 F.2d 1432 (9th Cir.1988)
While judicial review of agency action is generally limited to review of the administrative record, where the issue is alleged agency inaction the scope of review “is broader, particularly where the issue is whether an agency’s activities have triggered NEPA procedures. A broader scope of review is necessary because there will generally be little, if any, record to review.”Northcoast Environmental Center v. Glickman, 136 F.3d 660 (9th Cir.1998)
“[T]he district court may extend its review beyond the administrative record and permit the introduction of new evidence in NEPA cases where the plaintiff alleges ‘that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept ‘stubborn problems or serious criticism . . . under the rug.’” (See Animal Defense Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988) (quoting County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.1977)
The standard for granting a preliminary injunction balances the plaintiff’s likelihood of success against the relative hardship to the parties.
Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810 (9th Cir.2003)
The Ninth Circuit has recognized two different sets of criteria for injunctive relief:
(1) the traditional criteria; and
(2) the alternative criteria
Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005)
Plaintiff must show:
(1) a strong likelihood of success on the merits
(2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted
(3) a balance of hardships favoring plaintiff
(4) advancement of the public interest (in certain cases)
Plaintiff must show either:
(1) either a combination of probable success on the merits and the possibility of irreparable injury; or
(2) that serious questions are raised and the balance of hardships tips sharply in there favor
“These two formulations [the traditional and alternative criteria] represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success deceases. They are not separate tests but rather outer reaches of a single continuum.”
Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.2005)
A district court’s order with respect to preliminary injunctive relief is subject to limited review and will be reversed only if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” U.S. v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002)
“The district court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review.” Cal ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir.1985)(finding proper the district court’s exercise of discretion in allowing environmental group to proceed without posting a bond), amended on other grounds, 775 F.2d 998.
So long as a district court does not set such a high bond that it serves to thwart citizen actions, it does not abuse its discretion. See, e.g., Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322, 323 (9th cir.1975)(reversing the district court’s unreasonable high bond of $4,500,000)