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Judicial Review Under NEPA. What a Long, Hard Trip It Is. Bob Malmsheimer March 30, 2004. An Overview. Introduction Prerequisites for Litigation Judicial Review Remedies Questions. Introduction: The Parties. Plaintiff:

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Judicial Review Under NEPA

What a Long, Hard Trip It Is.

Bob Malmsheimer

March 30, 2004

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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 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 (if her lawsuit prevailed).

  • Zone of Interest (APA §706): Plaintiff is in the zone of interest protected by the statute.

  • Association plaintiffs must show all of above PLUS:

    • One of its members would have standing to bring the action, 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, 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.

      • 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 has violated Congress’ clear intent, or

        • Agency decision is 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?