Acting with no regret: a twenty-five year retrospective of Marsh v. Oregon Natural Resources Defense Council.

Author:Smith, Maxwell C.
Position:I. Introduction through III. Application of Marsh in the U.S. Courts of Appeals B. Nothing to Supplement Here 2. Speculative Environmental Impacts, p. 329-354
  1. INTRODUCTION II. BACKGROUND AND SUMMARY OF MARSH A. Duty to Prepare an EIS: A NEPA Requirement B. Duty to Prepare a Supplemental EIS: The Marsh Legacy C. A Closer Look at Marsh: A Dam and Two Documents III. APPLICATION OF MARSH IN THE U.S. COURTS OF APPEALS--WHAT KINDS OF NEW INFORMATION DO COURTS FIND (AND NOT FIND) SIGNIFICANT? A. Hold the Phone! Supplementation (or at least more NEPA review) is Required B. Nothing to Supplement Here 1. Information Previously Considered 2. Speculative Environmental Impacts 3. Information does not Undermine Assumptions in EIS 4. Common Sense 5. Impacts will Ultimately be Studied Elsewhere 6. Summary IV. THE MARSH TWO-STEP? A. The Basis for the Two-Step Review in Marsh B. Whether the Two-Step Marsh Test Undermines NEPA's Rule of Reason C. Application of the "Hard Look" Principle Going Forward D. Steps to Minimize Legal Risk 1. Marsh: the Paradigmatic "Hard Look" 2. Hughes River Watershed--an Incomplete Review 3. The Importance of Public Involvement 4. Pragmatic Approaches to New Information 5. Choreographing the Marsh Two-Step (and One-Step) V. CONCLUSION "NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." ***



    We live in a world of information overload. Smartphones, Facebook, Twitter, and email alert us to breaking news instantaneously. Almost before we process new information, another sensational story takes center stage: the latest political scandal, mass shooting, plane crash, superstorm, kidnapping, or act of war or terror. How do we react to this ever-evolving information? Some people cancel travel plans, remove children from public school, or buy security systems or weapons. others move on with their day and barely bat an eye as they process all of this new and seemingly significant information.

    For federal agencies preparing environmental impact statements (EIS) under the National Environmental Policy Act (NEPA), the answer appears clear. Twenty-five years ago in Marsh v. Oregon Natural Resources Defense Council, (1) the Supreme Court held that an agency must supplement its EIS before taking federal action if it discovers new and significant information. (2) But what is significant? One might assume that it would be shocking events, like terrorism, nuclear accidents, and environmental disasters. However, as discussed below, courts rarely consider this type of information significant. Instead, it is the agency's response to new information that frequently proves decisive.

    Given the prevalence and importance of this issue, Marsh has often been cited over the past twenty-five years. (3) As major federal actions regularly take years to complete--occasionally years more than anticipated--agencies routinely confront the question of whether the analysis in an aged EIS is still legally sufficient, or whether the issuing agency must update or supplement it with new information. (4) Unfortunately, a review of scholarly articles and case law reveals that this question has not been treated with the care it deserves. Few academic articles seriously discuss the problem of supplementation. (5) Worse, most reviewing courts routinely provide a cursory recitation of Marsh boilerplate and then leap to a conclusion of whether an agency acted correctly. (6)

    In honor of Marshs twenty-fifth anniversary, this article takes a fresh look at this Supreme Court decision and the Federal courts' subsequent reactions to it. First, we examine what actually constitutes new and significant information under Marsh. While courts do not crisply define "significant," (7) a review of the courts' approaches to the problem may help determine what information is actually "significant" in practice. Second, we examine what procedural steps an agency must take to determine whether new information actually meets the "significant" standard. While some courts explicitly review whether the agency adequately considered new information--as opposed to simply considering whether the new information was indeed significant--all courts rely on the agency's own review to inform their appraisal of new information's importance.

    In sum, this article provides NEPA practitioners with a roadmap for examining the significance of new information by better defining the concept of significance and noting elements of significance examinations that courts have viewed with approval and those that courts have found inadequate. While Marsh has not received its due in academic literature or the judicial reports, the decision has created some fascinating NEPA case law. The story of Marsh is the story of species on the verge of extinction, gridlock and urban sprawl, advanced computer modeling, nuclear power, aviation regulation, terrorism, and ultimately the price of progress.


    1. Duty to Prepare an EIS: A NEPA Requirement

      Under NEPA, a federal agency must prepare an EIS if it is proposing a major federal action significantly affecting the quality of the human environment. (8) Pursuant to the Council on Environmental Quality's (CEQ) regulations governing compliance with NEPA, (9) an EIS should "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." (10) Preparation of an EIS "furthers two important purposes-to ensure that agencies do not make decisions based on incomplete information and to provide information about environmental effects to the public and other governmental agencies in a timely fashion so that they have an opportunity to respond." (11)

    2. Duty to Prepare a Supplemental EIS: The Marsh Legacy

      In Marsh, the Supreme Court extended the scope of NEPA's EIS requirement. Marsh requires agencies to update existing EISs to account for "new and significant information" discovered before completion of the major federal action. (12) In the twenty-five years since Marsh, many challengers have claimed that new information triggered an agency's duty to supplement an EIS. (13) As outlined below, the deciding courts have applied the multipart Marsh framework differently, including how to define new and significant information (14) and whether the review is a one-step or two-step process. These different formulations and approaches make it difficult to discern (1) when a federal agency must supplement an EIS based on new and significant information and (2) the level of deference given on review to the agency's decision.

      However, a careful review of the cases suggests a few trends that NEPA practitioners can rely on when considering whether new information is so significant that the agency must prepare a supplemental EIS (SEIS) to account for it. Specifically, most courts of appeals agree that federal agencies must supplement an EIS when new information presents a "seriously different picture of the environmental impact" of the Federal action or reveals previously unanalyzed impacts. (15) While this standard may be vague, (16) in practice courts require agencies to supplement when new information suggests a severe environmental impact. In contrast, courts do not find information significant when it: (1) is similar to information addressed in the previous analysis in the EIS; (2) is vague or speculative; (3) does not undermine an important assumption in the EIS; (4) conflicts with common sense; or in some cases, (5) will be considered elsewhere. (17) Likewise, while courts have not agreed on how to review the agency's decision not to supplement, courts are more likely to uphold a decision not to supplement when an agency documents its review, relies on established experts, directly responds to...

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