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

• Author: Smith, Maxwell C.
• Position: III. Application of Marsh in the U.S. Courts of Appeals B. Nothing to Supplement Here 3. Information Does Not Undermine Assumptions in EIS through V. Conclusion, with footnotes, p. 354-381

3. Information Does Not Undermine Assumptions in EIS

   One might wonder what information could possibly be significant if courts have ruled that information concerning terrorist attacks and nuclear power plant accidents are insignificant. Recall that plaintiffs bring supplementation claims when an agency has already prepared an environmental analysis in an EIS. Under Marsh, the agency's analysis is typically given substantial deference. (140) Thus, even if the existing environmental analysis did not consider events, impacts, or consequences similar to the allegedly significant information, courts are still likely to uphold the agency's decision not to supplement when the allegedly new and significant information does not undermine the assumptions supporting the EIS.

   For example, in Massachusetts v. NRC, (141) the First Circuit turned to the agency's existing environmental analyses for a nuclear power plant license renewal to see if information related to the accident at the Fukushima nuclear power plant in Japan undermined any assumptions in the EIS. Specifically, the First Circuit considered a claim that the NRC acted arbitrarily and capriciously in not supplementing the existing severe accident mitigation alternatives (SAMA) analysis in an EIS for a nuclear plant's license renewal. (142) Petitioners alleged that the Fukushima accident presented new and significant information, particularly with regard to spent fuel pool fires, core damage events, and recommendations from a report prepared by senior-level NRC employees regarding the accident. (143) In considering the claim, the court noted that the agency's EIS (144) contained a discussion regarding SAMAs and that the discussion included consideration of accident scenarios similar to what happened at Fukushima (e.g., "complete loss of offsite power, various sorts of operator failures during core damage events, the possibility of [hydrogen-fueled explosions], and the use of filtered vents"). (145) Therefore, the court held that the NRC took the requisite hard look at the new information and that Massachusetts' claims regarding core damage frequency and methodology did not demonstrate the existence of a significant environmental issue. (146)

   Likewise, in Town of Winthrop v. Federal Aviation Administration, (147) the Town of Winthrop and two local residents claimed that the FAA had "acted arbitrarily and capriciously" in its decision not to prepare an SEIS before issuing a final order permitting the construction of a new taxiway at the Logan Airport. (148) Specifically, the court considered claims that three letters "raise[d] questions about the adequacy of the FAA's consideration of the health impacts of the Centerfield Taxiway." (149) After describing ways in which the FAA was responding to the letters' requests to gather additional data and perform further analysis, the court held that "it was not arbitrary and capricious for the FAA to conclude that it had enough data to make a reasoned decision. There will always be more data that could be gathered; agencies must have some discretion to decide when to draw the line and move forward with decisionmaking." (150) The court reasoned that the key in deciding whether the new information presented a seriously different picture than that described in the EIS was whether the data that the agency collected regarding emissions inventory "drew into question the health impact analyses in the EIS." (151) The court held that the FAA reasonably concluded that the data did not raise such questions. (152)

   Similarly, in Tinicum Township v. U.S Department of Transportation, (153) the Third Circuit upheld an agency's decision not to supplement an EIS based on new information when it found the information merely confirmed the agency's conclusions. Specifically, the court considered an agency's decision not to supplement its EIS for an expansion of Philadelphia International Airport given air quality studies that followed the FAA's approval of the expansion. (154) The petitioners claimed that a letter EPA submitted four months after the FAA's approval, which discussed two new emissions studies, constituted new and significant information requiring supplementation. (155) The court determined that the studies referenced in EPA's letter confirmed the FAA's conclusions and did not indicate any significant environmental impacts beyond those contemplated in the EIS. (156) The Court stated that "[w]here new information merely confirms the agency's original analysis, no supplemental EIS is indicated." (157) Thus, the court held that the agency was not arbitrary and capricious in not supplementing the EIS based on the new information in EPA's letter. (158)

4. Common Sense

   Agencies can and should use common sense in determining whether new information provides a "seriously different picture" of the environmental impacts of an agency action. As the Second Circuit explained in Skinner, using common sense in deciding whether to supplement an EIS "may provide a reasonable substitute for [the] additional empirical data and expert testimony the [petitioners] would require." (159)

   The court in Town of Winthrop also relied on common sense instead of additional research. Specifically, the court stated, "[i]t is a matter of common sense that an action quantitatively projected to reduce all air pollutants that were studied would also reduce the amount of air pollutants not studied." (160) The court further stated that an SEIS is not a research document (161) and held that the FAA "acted within reason" in response to the new studies on potential health effects from the project. (162) Ultimately, the court found that the EIS considered the health effects of the particulate matter and while newer studies might have provided more information, the FAA reasonably declined to supplement. (163)

   South Trenton Residents Against 29 v. Federal Highway Administration (164) also rested on a "common sense" approach to following Marsh. In South Trenton, the Third Circuit considered petitioners' challenges to an order of the Federal Highway Administration approving a four-lane highway project in New Jersey. (165) The agency had completed an EIS on a previously proposed six-lane highway alternative but considerable time had passed and the preferred alternative had changed. Therefore, the agency prepared an "Environmental Reevalutation," which was prepared to "determine whether the [original FEIS] remained valid, or whether [an SEIS] was necessary." (16) 6 The agency concluded that the environmental impacts of the proposed fourlane highway were "substantially less than those impacts identified in the [FEIS] for the previously proposed six-lane alternative." (167)

   In evaluating the FHA's decision not to supplement, the court stated that it was "clear from the record that the four-lane alternative, if anything, would mitigate any environmental impact associated with the originally approved six-lane highway design," (168) including impacts to "water quality, floodplains, wetlands, and aquatic habitat." (169) Further, the agency's Environmental Reevaluation showed that impacts from the four-lane highway could either be mitigated, would not result in a significant impact, and/or would not change. (170) Thus, the court held that the decision not to draft an SEIS was reasonable under the circumstances. (171)

5. Impacts will Ultimately be Studied Elsewhere

   Courts have also upheld an agency's decision not to supplement when it is clear that the environmental impacts associated with the new information have been considered by the agency and that any future action implicating the new information will receive separate NEPA treatment. (172) For example, in Natural Resources Defense Council v. FAA, (173) petitioners challenged the FAA's decision to approve a new airport at the West Bay Site, which was supported by the FAA's EIS. (174) The FAA "found that a new airport at the West Bay Site would have a significant adverse effect on natural resources [but] nevertheless approved the project because it found that no prudent alternative existed." (175) Petitioners argued that the FAA violated NEPA by "declining to issue a supplemental EIS evaluating the impact of the proposed airport on the endangered ivory-billed woodpecker." (176) Petitioners alleged that the FAA was required to supplement the EIS because eleven days after the FAA issued its Record of Decision (ROD) approving the project, "ornithologists from Auburn University announced that they had detected ivory-billed woodpeckers in the wetlands of the Choctawatchee River approximately 20 miles northwest of the proposed West Bay Site." (177)

   The court noted that in this case, the FAA responded to the new information regarding the ivory-billed woodpecker by conducting a Biological Assessment (BA) and transmitted its assessment to the United States Fish and Wildlife Service (USFWS). (178) In preparing the BA, the FAA:

   [A]scertained the potential habitat types for the ivory-billed woodpecker [and] examined field and aerial surveys of the 4,000-acre West Bay Site and 75,000-acre West Bay Sector Plan for evidence of such habitats. It found small areas that would serve as potential habitat, but no areas sufficiently large to support the woodpecker within the surveyed region. The agency further concluded, based on its review of the scientific literature, that overhead flight noise was unlikely to have an adverse effect on the ivory-billed woodpecker. (179) The BA concluded that the airport might affect the woodpecker but would probably not adversely affect the woodpecker should the woodpecker's existence be subsequently confirmed by the USFWS. (180) The USFWS concurred with this BA, which became the basis for the FAA not supplementing the SEIS. (181) The court considered but rejected the petitioners' claims that the FAA's BA was "arbitrarily circumscribed because the FAA did not consider the effects of secondary development in...