§1.7 - Judicial Review

• Jurisdiction: Washington

§1.7 JUDICIAL REVIEW

Judicial review of NEPA decisions is discussed below.

(1) No substantive review under NEPA

Although in early cases courts found that NEPA should be given substantive effect, it is now well settled that NEPA is primarily a procedural statute. In Kleppe v. Sierra Club, the Supreme Court stated:

Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions .... The only role for a court is to insure that the agency has taken a hard look at environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.

Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978) (NEPA does not set forth substantive goals for the nation). The Court further refined its position in 1980, possibly limiting the grounds for setting aside an agency decision on the merits when a court concludes NEPAs values were given insufficient consideration:

[O]nce an agency has made a decision subject to NEPAs procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.

Stryckers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S. Ct. 497 (1980).

The Supreme Court reaffirmed this deferential position in Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S. Ct. 1385, 104 L. Ed. 2d 351 (1989). While holding that NEPA imposes no substantive duty on agencies to mitigate adverse environmental impacts, the Court stated:

[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process .... If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs .... Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformedrather than unwiseagency action.

Id. at 350-51. The Ninth Circuit continues to characterize NEPA as a procedural statute that imposes no substantive obligations upon federal agencies. E.g., N. Idaho Cmty. Action Network v. U.S. Dept of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008).

(2) Prerequisites to judicial review

Prerequisites the court must address in review of NEPA actions are discussed below.

(a) Jurisdiction

NEPA does not expressly provide a right of action for judicial review of alleged violations of its requirements. Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Instead, a plaintiff will usually rely upon the Administrative Procedure Act (APA), 5 U.S.C. §§701-706, to provide a cause of action. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (judicial enforcement of NEPA rights is available through the APA). The APA provides judicial review of final agency action for which there is no other adequate remedy in a court. 5 U.S.C. §704. The APA also provides a waiver of sovereign immunity, 5 U.S.C. §702, and allows a plaintiff to seek declaratory judgments or writs of prohibitory or mandatory injunction ..., in a court of competent jurisdiction. 5 U.S.C. §703. The federal district courts typically will have original jurisdiction pursuant to the federal question statute, 28 U.S.C §1331. However, in some instances, a federal statute provides for direct judicial review exclusively in the courts of appeal, which will override the district courts jurisdiction. E.g., Nuclear Info. & Res. Serv. v. U.S. Dept of Transp. Research & Special Programs Admin., 457 F.3d 956 (9th Cir. 2006).

(b) Standing

As a threshold question in NEPA cases, the courts will consider whether the plaintiff has standing to bring suit. Article III of the United States Constitution limits the power of the federal courts to reviewing cases and controversies. U.S. Const. art. III, §2, cl. 1. The courts have interpreted this clause to require questions to be presented in an adversarial context and in a form capable of resolution through the judicial process. Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007). The Supreme Court has stated that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. Id. at 517. In addition to these constitutional requirements, a plaintiff bringing suit under the APA must show its claims are within the zone of interests that NEPA was designed to protect. Ocean Advocates v. U.S. Army Corps of Engrs, 402 F.3d 846 (9th Cir. 2005).

To satisfy the first element for standing, a plaintiff must demonstrate an injury in fact. Lujan, 497 U.S. 871. The courts have found that the injury in fact requirement is satisfied when a plaintiff demonstrates an interest in a particular place or species and that its interest will be impaired by the agencys conduct. E.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (impairment of wildlife viewing opportunities for those owning land in close proximity to proposed property development); Eco. Rights Found. v. Pac. Lumber Co., 230 F.3d 1141 (9th Cir. 2000) (longstanding recreational and aesthetic interests in creek were impacted based on concerns that defendant was discharging pollutants into creek). A plaintiff must demonstrate injury of a particular interest in a personal and individualized way. E.g., Laub v. U.S. Dept of Interior, 342 F.3d 1080, 1086 (9th Cir. 2003) (farmers challenged proposed plan for managing water resources for agricultural lands). Although courts have not required actual evidence of environmental harm, a plaintiff must demonstrate an increased risk of harm that is not conjectural or hypothetical. E.g., Ocean Advocates, 402 F.3d 846 (extension of pier would increase tanker traffic and risk of oil spill).

The courts have also found that plaintiffs can demonstrate injury in fact based upon procedural violations of NEPA. To demonstrate standing for procedural violations, a plaintiff must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 779 (9th Cir. 2006) (extension of federal lease and approval of geothermal plant). Courts have described the concrete interest element as requiring a geographic nexus between the individual asserting the claim and the location suffering an environmental impact. Cantrell v. Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (birdwatchers had standing to challenge EIS for reuse of naval station). Courts have found that the geographic nexus is satisfied when the plaintiffs use the affected area or own land near the site of a proposed action. Compare Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) (geographic nexus established when plaintiffs had ownership interests in land adjacent to forest), with Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005) (no geographic nexus when mining project would be 250 miles away), cert. denied, 548 U.S. 903 (2006). Plaintiffs are not required to assert any...