The National Environmental Policy Act in the Ninth Circuit: Once the Leader, Now the Follower?
Precisely what is the relationship between the developing jurisprudence of the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), the most renowned “baby” NEPA? What is the societal and environmental value of the current legal structure of these two statutory behemoths both individually and conjunctionally considered? Endeavoring to answer these questions, this study analyzes all published opinions from the First, Ninth, and Eleventh United States Circuit Courts of Appeals during a fifteen year study period (1997 to 2012), where plaintiffs challenged the validity of a federal agency’s compliance with NEPA.
It reveals not only that CEQA jurisprudence has strayed from that of NEPA, despite being modeled after it, but, even more astounding, that NEPA jurisprudence of the Ninth Circuit, the federal appellate court that includes California, is following CEQA’s blatant divergence from NEPA as practiced in the rest of the country, creating a fundamentally different version of NEPA applicable only to the Western states. The study concludes by calling on the Council on Environmental Quality to update its NEPA regulations to provide a more clear explanation of the statute’s mandates, including clear direction on how federal agencies should accomplish these mandates