CHAPTER 6 NEPA'S SCIENTIFIC AND INFORMATION STANDARDS--TAKING THE HARDER LOOK

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 6
NEPA'S SCIENTIFIC AND INFORMATION STANDARDS--TAKING THE HARDER LOOK
Murray D. Feldman
Partner
Holland & Hart LLP
Boise, ID
Kristin A. Nichols
Associate
Holland & Hart LLP
Greenwood Village, CO

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MURRAY FELDMAN is a partner in the Boise, Idaho office of Holland & Hart LLP. He represents state and local governments, landowners, and others in NEPA, Endangered Species Act, public lands permitting, and general environmental litigation and administrative matters. He also represents parents in cases under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Murray has worked on cases throughout the Pacific Northwest, Intermountain West, Alabama, Michigan, and Texas, including mining and oil and gas projects; water, natural gas, and petroleum products pipelines; water resource development infrastructure; industrial facilities; ranch operations; residential home, resort, and subdivision development; and outfitter and guide operations and facilities. He is listed in the Best Lawyers in America, Chambers USA America's Leading Lawyers for Business, and Mountain States Super Lawyers. Murray has authored over 30 articles and book chapters, including as co-author of the current ABA Basic Practice Series book on the ESA, and co-editor of the recent Idaho Humanities Council book "Idaho Wilderness Considered." He also co-authored "The Role of Climate Change in ESA Decisions" for the 2016 RMMLF Journal. Murray received his J.D. from the University of California, Berkeley (Boalt Hall) School of Law, and his M. S. degree from the University of Idaho College of Natural Resources.

KRISTIN NICHOLS is an associate in the Denver Tech Center, Colorado office of Holland & Hart LLP. She advises clients on a wide variety of natural resource issues, including energy development on federal, state, and tribal lands. Her practice involves litigation before the Interior Board of Land Appeals and other federal administrative boards, as well as federal courts. She has worked on administrative appeals before the Bureau of Indian Affairs, the Office of Natural Resources Revenue, and the Office of the Director for the Office of Hearings and Appeals. Kristin also assists clients in working through complex federal and state regulatory processes to permit and develop projects on public lands, including compliance under NEPA. She received her B. A. from the University of California, Santa Barbara, and her J.D. from the University of Denver.

I. Introduction and Scope

II. Statutory and Regulatory Framework

A. NEPA's Twin Goals

B. NEPA's Action-Forcing Provisions

C. NEPA's Scientific Information and Data Requirements

III. The Standard of Review and the "Harder Look"

A. The Standard of Review Framework for Judicial Review of NEPA Decisions

B. The Transition from the Hard Look to the "Harder Look"

C. Ecology Center v. Austin--A Turning Point

D. Lands Council v. McNair--Hitting the Pause Button on Harder-Look Review?

E. Continuing the Harder Look After McNair

IV. Contemporary Issues in Harder-Look Review

A. Data Sufficiency

B. Data Gaps--Incomplete or Insufficient Information

C. Stale Data

D. Consideration and Incorporation of Opposing Scientific Viewpoints

E. Modeling and Methodologies

1. Modeling

2. Methodologies

V. What Factors Underlie the Harder Look?

VI. Conclusions and Recommendations

I. Introduction and Scope

Scientific analyses and information are at the core of the National Environmental Policy Act's rational decision-making model for federal agencies and the consideration of a project's likely environmental consequences. While the Council on Environmental Quality regulations provide that an environmental impact statement's alternatives section "is the heart" of the EIS, it is "[a]ccurate scientific analysis, expert agency comments, and public scrutiny" that are essential to implementing NEPA.¹

In earlier papers,² for which this paper essentially serves as part III of a trilogy, we explored the shifting patterns in judicial review of federal agencies' scientific assessments of environmental impacts under NEPA. We noted that "courts increasingly are looking past the agency's science-based conclusions and are probing deeper into the data, models, methodologies, and assumptions that underlie the agency's [scientific] assessment."³ We concluded in 2007 that "courts are taking a 'harder look' than ever before at the scientific information and analyses used in federal agency NEPA decisions."⁴

Following our 2007 paper, the Ninth Circuit in Lands Council v. McNair⁵ decided what was described in some corners as "the most important decision involving a [federal agency] environmental case in the last two decades,"⁶ and a possible watershed in judicial review of agency NEPA actions, suggesting a return to a more deferential role for judicial review.⁷

In our subsequent 2011 paper, we hypothesized, a few years after the McNair decision, that

McNair at first appeared to mark the end of the shift toward "harder look" review under NEPA. But, as in many areas of the law, decisions subsequent to McNair show that the debate highlighted in the original

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panel decision continues. By whatever standard and whatever name, courts in the Ninth Circuit and elsewhere are continuing with "harder look" review under NEPA. ⁸

In this paper, we seek to further test that hypothesis. Did McNair signal a fundamental shift in judicial review of the use scientific information and analyses in federal agency NEPA decisions, or was it more of a restatement or revision of the existing NEPA judicial review procedures? Similarly, has the harder look we previously described continued in application after McNair, or has its influence been attenuated?

To explore these questions, we undertook an empirical review of the substantive and applicable federal court NEPA cases citing to Lands Council v. McNair and decided since November 2010, the cutoff date of our prior evaluation of this issue. Our review focused primarily on cases in the federal circuit courts of appeals, particularly those in the Ninth Circuit. We also reviewed cases citing to the CEQ's regulations addressing the use of scientific information in NEPA documents,⁹ again focusing primarily on circuit court decisions.

As detailed below, our conclusion from this empirical review--echoed in the law review literature--is that McNair has not provided "a sea change but rather a course correction in line with traditional tenets of administrative law and judicial deference to agency decisions."¹⁰ At the same time, as the post-McNair decisions here show, continuing a trend we previously identified, the federal courts' application of the harder-look standard persists. Also, the harder- look standard is not limited to the Ninth Circuit, but is reflected in many NEPA decisions across numerous federal circuits, and indeed can be seen in other environmental law contexts outside of NEPA, including the Endangered Species Act. The prevalence of this heightened judicial inquiry does not mean that every challenged agency NEPA decision is subject to harder-look review, but it does mean that in appropriate circumstances, and where the arguments and issues are framed by challengers so as to facilitate harder-look review, the courts may as a practical matter apply that standard to review an agency's use and application of scientific information in NEPA decision making.

In this paper we describe the circumstances when the harder-look standard may be applied, explain why the shift to harder-look review may be continuing, and provide practical suggestions for practitioners--both those preparing and commenting on agency NEPA documents and those litigating agency NEPA decisions--for working under and with this harder- look standard.

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II. Statutory and Regulatory Framework

A. NEPA's Twin Goals

NEPA's twin goals are: (1) to foster informed decision making by "ensur[ing] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts," and (2) to promote informed public participation by requiring full disclosure of and opportunities for the public to participate in governmental decisions affecting environmental quality.¹¹ To that end, agencies must disclose the scientific information and analyses on which they rely in their environmental effects analyses and decision-making processes.

B. NEPA's Action-Forcing Provisions

NEPA requires the preparation of an EIS for every "major Federal action[] significantly affecting the quality of the human environment."¹² An EIS, among other things, details "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action."¹³ An agency may first prepare an environmental assessment to aid in its implementation of NEPA and to determine whether the effects of the action will be significant, requiring analysis in an EIS.¹⁴ If the agency determines that the effects of the proposed action will not be significant, the agency will issue a finding of no significant impact and the preparation of an EIS is not required.¹⁵ But the EA's FONSI determination must still be supported by the agency's record and any applicable scientific information and analysis. While NEPA does not require a particular substantive outcome, it does require "agencies to take a 'hard look' at how the choices before them affect the environment, and then to place their data and conclusions before the public."¹⁶

C. NEPA's Scientific Information and Data Requirements

NEPA requires agencies to "[u]tilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in...