Chapter 15 Remedies in NEPA Litigation
| Jurisdiction | United States |
MICHAEL S. SAWYER is a Senior Trial Attorney in the Natural Resources Section of the Environment and Natural Resources Division of the U.S. Department of Justice. (Title and position provided solely for identification purposes.) He has represented the President and a variety of federal agencies in environmental disputes throughout the country. He clerked for the Honorable William C. Bryson on the U.S. Court of Appeals for the Federal Circuit, and graduated from the University of California, Berkeley, School of Law and the University of Scranton.
The National Environmental Policy Act (NEPA) requires that agencies consider the environmental consequences of major Federal actions. Because NEPA imposes only procedural requirements on agencies, judicial review of NEPA decisions is similarly confined to ensuring procedural compliance. But court-imposed remedies for procedural violations can delay projects to the point that they end up being abandoned, thus creating substantive consequences for a purely procedural statute. This paper addresses how courts fashion remedies in NEPA litigation.
As other commentors have observed, remedies in NEPA litigation implicate three intersecting sources of law: NEPA, the Administrative Procedure Act (APA), and traditional principles of equity.2 This paper summarizes these applicable sources of law before explaining how they have been applied in the context of NEPA litigation.
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I. LEGAL BACKGROUND
NEPA is a procedural statute that requires federal agencies to consider potential environmental impacts of a "proposed action" as well as "alternatives to the proposed action."3 The statute has "twin aims": improved agency decision-making through considering environmental impacts and informing the public about those environmental impacts.4 But NEPA "does not mandate particular results" in the form of specific environmental outcomes.5 It instead requires agencies to take a "hard look" at the environmental consequences of a proposed "major Federal action," while permitting agencies to decide "that other values outweigh the environmental costs."6
When such proposed actions will have significant adverse environmental impacts, agencies analyze those impacts through an Environmental Impact Statement (EIS), prepared pursuant to regulations promulgated by the Council on Environmental Quality (CEQ).7 For proposed actions that may not have significant effects, agencies can prepare Environmental Assessments (EAs) to assess the need for an EIS.8 After evaluating the significance of potential impacts through an EA, an agency can prepare a Finding of No Significant Impact (FONSI) if it determines that an EIS is not required.9
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Because NEPA does not contain a private right of action, NEPA challenges are brought pursuant to the APA.10 The APA authorizes courts to "hold unlawful and set aside agency action" found to be arbitrary, capricious, or otherwise not in accordance with law, while directing courts to take due account of the rule of prejudicial error.11 Section 706(2) of the APA has engendered debate about whether it requires12 or allows13 courts to "vacate" agency action.14 While occasionally characterizing remand with vacatur as the "normal" or "presumptive" remedy when agency action is found to be unlawful under the APA,15 lower courts have generally recognized the propriety of remand without vacatur.16
The APA also authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed."17 "Failures to act are sometimes remediable under the APA, but not
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always," because the APA places strict limits on "judicial review of agency inaction."18 Those limits authorize compelling agency action "only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take."19
Both remedial provisions of the APA must be balanced against separation of powers concerns. Courts cannot "impose upon the agency [their] own notion of which procedures are 'best'" on remand,20 without intruding "into the domain which Congress has set aside exclusively for the administrative agency."21 Thus, "the function of the reviewing court ends when an error of law is laid bare."22 "At that point the matter once more goes to the [agency] for reconsideration,"23 as courts "cannot[] dictate to the agency what course it ultimately must take" on remand.24
"When Congress leaves to the federal courts the formulation of remedial details, it can hardly expect them to break with historic principles of equity," which "eschews mechanical rules" and "depends on flexibility."25 "The essence of equity jurisdiction has been the power . . .
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to mould each decree to the necessities of the particular case."26 "The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law."27
Rather than adopting rigid rules to govern requests for injunctive relief, the Supreme Court has instead explained that such requests should ordinarily be governed by the "four-factor test historically employed by courts of equity," which requires "an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion."28 This test requires a "plaintiff seeking a preliminary injunction [to] establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."29 To obtain a permanent injunction, a plaintiff must show "actual success" on the merits.30
Lower courts have also generally recognized that equitable principles apply to APA remedies. Remand without vacatur invokes the traditional equitable authority of the court to keep the challenged action in place while the agency undertakes corrective procedures on remand.31 And requests to compel withheld agency action have usually been treated as governed by equitable principles.32
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II. REMEDIES AS APPLIED TO NEPA LITIGATION
While remand is a typical remedy in NEPA litigation,33 a significant—but sometimes overlooked34 —consideration addresses whether the agency action should remain in place during remand. Remand without vacatur involves a balancing test often attributed to the D.C. Circuit's decision in Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n.35 That test instructs courts to consider both the seriousness of the agency's APA violations and the disruptive consequences of vacatur. Where it appears that an agency may be able to remedy its error and vacating the challenged action would have disruptive effects, remand without vacatur is an appropriate remedy.36
Courts have remanded without vacatur after finding a variety of errors under NEPA. These include situations where the agency was found to have erroneously calculated
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environmental impacts37 or insufficiently analyzed certain environmental effects.38 The D.C. Circuit has held, however, that remand without vacatur was inappropriate when it seemed that the agency relied on the wrong NEPA procedure by preparing a FONSI instead of an EIS.39 The court explained that the relevant question in such circumstances asks whether the agency would be able "to justify its issuance of a FONSI," not whether the agency would be able to support the underlying action after preparing an EIS.40
Courts are more likely to remand without vacatur when vacating creates environmental, health or other welfare risks.41 In evaluating such risks, courts will consider the environmental effects of replacement activities,42 provided that the record adequately establishes such consequences.43 Economic disruption also matters,44 but some courts have suggested that the
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economic consequences of vacatur have less—or perhaps no—relevance in NEPA cases.45 In evaluating disruptive consequences, evidentiary showings regarding those consequences can be important.46
Courts tend to apply their equitable discretion when weighing the two Allied-Signal factors. Even when the disruptive consequences of vacatur might not be significant, courts may still remand without vacatur if the agency has a high probability of justifying its decision on remand.47 On the other hand, even significant disruptive consequences may not justify remand without vacatur if it appears that the agency will be unlikely to justify its decision on remand.48
One potential path for courts to decide the propriety of vacatur is when an agency requests voluntary remand.49 The agency may do so because of intervening events, to reconsider its previous position, or to change its position.50 Particularly in NEPA litigation, courts "commonly grant motions to remand an administrative record to allow an agency to consider new evidence that became available after the agency's original decision."51 This approach serves
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dual purposes: permitting agencies to exercise their "inherent power to reconsider their own decisions,"52 and conserving judicial resources by "allow[ing] agencies to...
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