Despite the fact that National Environmental Policy Act (“NEPA”) is almost 40 years old, some federal district courts still confuse their role in reviewing challenges to agency actions. NEPA was enacted in 1969 in order to raise the awareness of federal agencies regarding the environmental impacts of major federal actions, such as issuance of a permit. Generally, the Act requires agencies to conduct an Environmental Assessment (“EA”) to determine if a proposed federal action will have a significant impact. If not, the agency issues a Findings of No Significant Impact (“FONSI”) to support the major federal action. If the agency finds that there will be a significant impact, it is required by NEPA to prepare an Environmental Impact Statements (“EIS”) which is a detailed examination of the environmental impact of the agency’s proposed action.
Despite the widespread recognition that NEPA is a procedural statute and not designed to yield any particular substantive result, some district courts still view NEPA challenges as inviting a review of the merits of the agency decision. An example is presented in Sierra Club v. Van Antwerp, _____ F.3d _____, 2008 WL 1991446 (11th Cir. May 9, 2008). In that case the Army Corps of Engineers granted a controversial permit for limestone mines located in south Florida’s Lake Belt which comprises 60,000 acres of wetlands. The decision was issued after the preparation of an EIS (and a Supplemental EIS) which recognized the project’s negative environmental impacts. The district court essentially concluded that the permits were to be vacated and issued what amounted to an injunction against the mining operations. Although the Court of Appeals commended the district court for its thoroughness, it noted that the district court remanded the permits to the Corps because of the cumulative effect of the Corps’ errors, rather than procedural flaws in its NEPA review.
The Court of Appeals cited several passages from the district court opinion indicating that the district court had predetermined the outcome and, in effect, focused on the merits of the Corps’ decision rather than its compliance with the procedural standards of NEPA. The Court of Appeals concluded “no matter what evidence supported that conclusion, the [district] court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing”. Sierra Club v. Van Antwerp, 2008 WL 1991446 at 7.
The Court of Appeals made it clear that the district court had violated longstanding principles governing challenges under NEPA including the requirement to give substantial deference to agency decisions. The Court held that requirement of deference includes not only the decision itself but questions such as what evidence to find credible, whether to issue a FONSI or EIS, how much discussion to include on each topic and how much data is necessary to fully address each issue. The Court noted that, since NEPA is procedural, it would not violate NEPA if the EIS noted that granting the permits would result in the permanent irreversible destruction of the entire Florida Everglades, but the Corps decided that economic benefits outweighed that negative environmental impact.
In conclusion, the Court stated “NEPA can never provide grounds for the court to direct a federal agency’s substantive decision”. Id at 8.
This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.