Judicial Review Under NEPA

1. Judicial Review Under NEPA What a Long, Hard Trip It Is. Bob Malmsheimer March 30, 2004

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

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. 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. 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. 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.

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. 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. 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.

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, 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. 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.

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 has violated Congress’ clear intent, or • Agency decision is arbitrary and capricious. • Vermont Yankee • Judges should not substitute their decisions for permissible agency decisions.

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. 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. Questions?