CHAPTER 10 NEPA APPEALS AND LITIGATION: REVIEW ON THE MERITS

• Jurisdiction: United States

NEPA and Federal Land Development
(Feb 2006)
CHAPTER 10
NEPA APPEALS AND LITIGATION: REVIEW ON THE MERITS
Dinah Bear
General Counsel
White House Council on Environmental Quality
Washington, D.C.

DINAH BEAR

Dinah Bear is General Counsel of the Council on Environmental Quality (CEQ) in the Executive Office of the President. Ms. Bear joined CEQ as Deputy General Counsel in 1981, and was appointed General Counsel in 1983, serving in that capacity through September, 1993, and resuming that position in January of 1995. She has chaired the Standing Committee on Environmental Law of the American Bar Association and the Steering Committee of the Environment, Energy and Natural Resources Division of the District of Columbia Bar.

She has received the Distinguished Service Award from the Sierra Club and the Chairman's Award from the Natural Resources Council of America.

Ms. Bear graduated from McGeorge School of Law, Sacramento, California, in 1977, and received a Bachelors of Journalism degree from the University of Missouri at Columbia in 1974.

She has been admitted to practice by the State Bar of California, the District of Columbia, and the U.S. Supreme Court.

NEPA AND FEDERAL LANDS

I. Procedural versus Substantive Judicial Review

A. The U.S. Supreme Court has repeatedly made it clear that the only provisions of NEPA subject to judicial review are the procedural requirements of NEPA.

See Robertson v. Methow Valley Citizens Council 490 U.S. 332 (1989); Baltimore Gas & Electric v. NRDC, 462 U.S. 87 (1983); Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978); see also, Kleppe v. Sierra Club, 427 U.S. 390, 411 (1976).

B. By far the most frequently-cited quotation is the following dicta from Vermont Yankee:

1. "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural ... It is to insure a fully informed and well-considered decision, not necessarily a decision .... this Court would have reached had they been members of the decision-making unit of the agency." Id. at 558.

C. The actual holding, while foreshadowed in Kleppe, was articulated in a per curiam decision in Strycker's Bay. In that decision, the Court overturned an appellate decision that, in turn, overturned HUD's decision about the location and concentration of low-income housing in New York City. Over Justice Marshall's dissent, the Court held that:

1. "Once an agency has made a decision subject to NEPA's 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." Id. at 227-28.

2. In Baltimore Gas and Electric, Id., there was the hint of a possibility of a substantive aspect of NEPA from Justice O'Connor, who stated that, "The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." 462 U.S. at 97- 98.

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D. However, in Robertson v. Methow Valley, the Court made it clear that NEPA it viewed the policy goals set forth in Section 101 of NEPA as being accounted for through the "hard look" that agencies had to take at the environmental consequences of their proposed action and the dissemination of that information to the public, and that "it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Id. at 370. Justice Stevens noted in his opinion, however, that, "the strong precatory language of §101 of the Act and the requirement that agencies prepare detailed impact statements inevitably brings pressure to bear on agencies `to respond to the needs of environmental quality.'" Id. at 369 [cite omitted]

1. In the Robertson case, the Court also discussed the role of mitigation in the NEPA process. "To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. The requirement that an EIS contain a detailed discussion of possible mitigation emasures flows both from the language of the Act, and more expressly, from CEQ's implementing regulations. Implicit in NEPA's demand that an agency prepare a detailed statement on `any adverse environmental effects which cannot

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