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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

Judicial Review Under NEPA

What a Long, Hard Trip It Is.

Bob Malmsheimer

March 30, 2004

an overview
An Overview
  • Introduction
  • Prerequisites for Litigation
  • Judicial Review
  • Remedies
  • Questions
introduction the parties
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.
introduction types of nepa litigation
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?”
prerequisites for litigation introduction
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.
prerequisites for litigation cause of action
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.
prerequisites for litigation venue
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.
prerequisites for litigation standing
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.
prerequisites for litigation standing con t
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.
prerequisites for litigation other issues
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.
judicial review standard of review
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.
judicial review deference to agencies
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.
judicial review how often do agencies win
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.
remedies an injunction
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?