Supreme Court Issues Two Significant NEPA Decisions
July 15, 2004
Lawrence R. "Larry" Liebesman- Washington
In June, 2004, the U.S. Supreme Court issued two decisions interpreting the application of the National Environmental Policy Act (NEPA) to federal agencies. Both decisions restrict, under certain circumstances, the requirement that agencies prepare environmental evaluations of their actions.
Department of Transportation v. Public Citizen
On June 7, the Court issued Department of Transportation v. Public Citizen, Case No. 03-358, a unanimous decision authored by Justice Thomas that considered what is an “effect” for purposes of EIS evaluation. In 1982, Congress issued a moratorium barring new grants of operating authority to motor carriers domiciled in Mexico, authorizing the President to lift the suspension, which he did in 2001. The Federal Motor Carrier Safety Administration (FMCSA) subsequently issued two proposed rules concerning safety regulation of Mexican motor carriers. FMCSA issued a programmatic EA for the proposed regulations with a finding of no significant impact (FONSI).
The relevant question before the court was whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by Mexican trucks, qualified as an “effect” of FMCSA’s issuance of the regulations that the agency was required to consider in its EA.
The court held that even if the issuance of the regulations qualified as a “but for” cause of the increased Mexican motor carrier traffic in the United States, this alone was insufficient to require the agency to consider a particular effect under NEPA. Here, the FMCSA has no discretion to prevent their entry otherwise and is therefore not required to consider any environmental effects from the entry. The court stated that: “[W]here an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” The agency, therefore, need not consider the effect in determining whether its action requires preparation of an EIS.
Norton v. Southern Utah Wilderness Alliance
On June 14, the court issued Norton v. Southern Utah Wilderness Alliance, Case No. 03-101, a unanimous decision authored by Justice Scalia evaluating the scope of an “action” requiring supplementary environmental analysis. Since the Bureau of Land Management (BLM) initially approved a land use plan for federal land in Utah, off-road vehicle (ORV) use had increased. The respondents challenged that BLM had failed to take a “hard look” at whether, pursuant to NEPA, it should undertake supplemental environmental analyses as a result.
Under NEPA, an EIS must be supplemented where there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. However, as the court held in Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), supplementation is only necessary if there remains major federal action to occur. The court held that although approval of a land use plan is a major federal action, the action is completed when the plan is approved. There is no ongoing major federal action that could require supplementation. Additional NEPA analysis would only be required if the plan is amended or revised.
The court does not further define what, if any, other types of federal approval will similarly be considered a complete federal action. The lower courts will be left to draw analogies between the land use plan at issue in this case and other examples that arise in their jurisdiction.
Conclusion
Under the new decisions, the scope of the environmental effects that an agency is required to consider under NEPA has been limited. Both cases draw parameters around the NEPA process, restricting its application to federal agencies and the circumstances under which the agencies are required to conduct environmental analyses.
For more information, contact Lawrence R. Liebesman via e-mail at lawrence.liebesman@hklaw.com or call toll free, 1-888-688-8500.