JurisdictionUnited States
National Environmental Policy Act (Nov 2017)


Andrew C. Mergen 1
Deputy Section Chief-Appellate Section
U.S. Department of Justice, Environment & Natural Resources Division
Washington, DC

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ANDREW C. MERGEN is Deputy Section Chief in the Appellate Section of the Environment and Natural Resources Division, U.S. Department of Justice, where he supervises a wide variety of litigation. He has presented over 80 oral arguments including in all 13 federal courts of appeals and several state intermediate and supreme courts. In 2009 he was detailed to the Office of White House Counsel to assist in the work leading to the confirmation of the Honorable Sonia Sotomayor as Associate Justice of the Supreme Court. Mr. Mergen has taught at several law schools. He is a graduate of the University of Wisconsin-Madison and the George Washington University School of Law.


More litigation is undertaken under the National Environmental Policy Act (NEPA)2 than under any other environmental statute. NEPA's broad application to federal agency action means that the statute is implicated in a wide swath of agency decision making. Shortly after NEPA's enactment, courts adopted injunctive relief as a mechanism for ensuring agency compliance.3 As explained below, NEPA is a procedural statute and the sole role for a reviewing court in a NEPA cases is determining whether the appropriate procedures have been followed. A court is not to review the merits of an agency proposal. Agencies, depending on the scope of the authority delegated to them by Congress, have considerable discretion on how to implement statutory directives. But NEPA plaintiffs can obtain a substantive win by so delaying a project that an agency or project proponent loses its appetite for that project because of diminished public support, loss of funding, or other causes.

Consider the Early Winters ski resort proposed for Sandy Butte in Washington's Okanogan National Forest. The adequacy of the environmental impact statement for the project was litigated all the way to the Supreme Court.4 The Supreme Court found the analysis prepared by the Forest Service to be adequate but after years of litigation the Early Winters Ski Resort Project stalled for financial and logistical reasons.5 NEPA injunctions can not only frustrate development proposals or preserve pristine lands from development (depending on your perspective). They can also frustrate military readiness exercises, delay implementation of thinning or other forest treatments intended to prevent catastrophic wildfire, or delay the opening of mines or development of oil and gas leases. In short, injunctions in NEPA cases can and do have considerable real world consequences.

Injunctive relief is often but not exclusively sought at the preliminary stages of litigation. Preliminary injunctions and temporary restraining orders are sought to prevent groundbreaking and related activities alleged to create imminent and irreparable harm. But what about after the

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merits of a case has been decided? NEPA cases are reviewed under the strictures of the Administrative Procedure Act (APA).6 The APA provides that a reviewing court may "set aside" agency action.7 Is injunctive relief necessary where an agency action has been "set aside" and under what circumstances may an action set aside proceed?

This paper proposes to address the important issue of remedy in NEPA cases. Remedy issues in NEPA occur at a three way intersection. As described by Daniel Mach, issues regarding NEPA remedies represent a "merger" of NEPA, APA, and equitable commands and principles.8 Hence, remedial relief is informed by NEPA, the relevant APA provisions, and the common law of equity. The paper proceeds in three parts. First, it discusses NEPA, the APA and equity principles generally. Second it discusses the application of these principles to actions seeking to enjoin agency actions or vacate agencies records of decision. Finally it draws a few conclusions from the law as it has developed.

I. NEPA, the APA, and Fundamentals of Equity


Congress enacted NEPA to foster better decision-making by federal agencies.9 NEPA requires that, whenever a federal agency proposes a "major Federal action[] significantly affecting the quality of the human environment," the agency examine and inform the public about the reasonably foreseeable environmental effects of the proposed action.10 As part of this process, the agency must prepare a "detailed statement" of the environmental impact of the proposed action--an "environmental impact statement" (EIS)--the requirements for which are set out in regulations issued by the Council on Environmental Quality (CEQ).11 The CEQ regulations also provide the process for compliance with NEPA when an EIS is not required by preparing an "environmental assessment" (EA) in lieu of an EIS in certain circumstances.12

NEPA "does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council.13 NEPA's mandate to the agencies is essentially

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procedural" and is designed to "insure a fully informed and well considered decision" on the part of the federal agency. Vermont Yankee Nuclear Power Corp. v. NRDC.14

The Council on Environmental Quality's ("CEQ's") NEPA regulations specifically contemplate that an agency will identify its purpose and need for a project as well as its preferred alternative or alternatives during the NEPA process.15 40 C.F.R. §§ 1502.10 & 1502.14(e). Thus, courts inquire whether an agency brought "good faith objectivity rather than subjective impartiality" to its EIS.16


NEPA does not contain a private right of action. Agency action and hence compliance with NEPA is reviewed under the APA and the APA's arbitrary and capricious standard applies to judicial review of an agency's compliance with NEPA.17 That judicial review is also confined, subject to limited exceptions, to the administrative record.18 And "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."19

The APA directs federal courts to "hold unlawful and set aside" arbitrary or unlawful agency action. But not all errors require invalidation of agency action, especially when the error is minor, procedural, or would not have altered the outcome. The APA requires that "due account shall be taken of the rule of prejudicial error," 5 U.S.C. § 706, and Tom C. Clark's Attorney General's Manual on the Administrative Procedure Act (1947) states that this statement is intended to codify the rule of harmless error.20 An analogous provision, the federal "harmless-

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error" statute, 28 U.S.C. § 2111, directs courts to review cases for errors of law without regard to errors that do not affect the parties' "substantial rights."21

The party challenging agency action bears the burden of demonstrating prejudice from the agency's error.22 In the absence of such a showing, courts will not set aside agency action.23

Even if errors by an agency are significant or prejudicial, the role of reviewing courts under the APA is limited. Remand to the agency is almost always appropriate, and vacatur is not necessarily required.

"If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation."24

The function of a reviewing court ends when "an error of law is laid bare."25 Courts remand to agencies and do not typically perform an "administrative function."26 Whether a court vacates an agency decision or rule during the pendency of a remand to the agency depends upon the circumstances of the case. It "is simply not the law" that a court must vacate an agency action in violation of the APA.27 Courts have discretion to remand for further explanation without vacating a rule where vacatur would unduly disturb settled expectations and cause chaos.28

Equity, the APA and NEPA

In earlier times, Equity was administered entirely through separate Chancery courts, with their own procedures, standards, and remedial powers.29 Equity, in contrast to law, was valued for its flexible principles and processes. Now law and equity are merged but equitable remedies continue to reflect the principles developed in the old courts of equity. The Chancellor's independence was reflected in the maxim that equity "eschews mechanical rules" and "depends

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on flexibility."30 In today's jurisprudence, these maxims are given force in the function of a court acting in equity "to mould each decree to the necessities of the particular case."31 Thus, "while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action."32

Injunctions have a long history in environmental law. Early common law nuisance actions relied on the federal court's authority to force the abatement of pollution by injunctive order where fines, damages, or other legal remedies are inadequate.33 Not surprisingly, injunctive relief has long been sought in NEPA litigation.34

But injunctions are not the sole form of equitable relief available in a NEPA lawsuit. As noted above, although the APA states that a reviewing court "shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," 5 U.S.C. § 706 (emphasis added), it is "well established" that this "seemingly mandatory...

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