CHAPTER 9 NEPA APPEALS AND LITIGATION: JURISDICTION AND PROCEDURAL ISSUES1
| Jurisdiction | United States |
(Feb 2006)
NEPA APPEALS AND LITIGATION: JURISDICTION AND PROCEDURAL ISSUES1
Senior Staff Attorney
National Wildlife Federation
Boulder, Colorado
Eric Potyondy
University of Colorado
School of Law
Boulder, Colorado
THOMAS D. LUSTIG
Tom Lustig is the senior staff attorney in the National Wildlife Federation's Rocky Mountain Natural Resource Center in Boulder, Colorado. Lustig is a federal lands lawyer, who has been litigating public lands cases for the National Wildlife Federation and other environmental groups for twenty-six years.
His cases include the rights of wildlife to reach federal land across private land; livestock grazing appeals in Arizona, Idaho, Utah, Wyoming, and Colorado; wilderness protection cases in Arizona; defending the public's right to participate in federal lands decisions in Wyoming and Utah; constitutional "takings" cases in Nevada, New Mexico, and Wyoming; oil and gas appeals in Wyoming and Colorado; and a smattering of ski development, surface coal mining, timber cutting, road building, game ranching, and land exchange cases scattered throughout the West.
Lustig received his A.B. from Washington University, his M.S. from the University of Michigan's School of Natural Resources, his J.D. from the University of Colorado, and his Ph.D. from M.I.T.'s Division of Water Resources and Environmental Engineering.
I. JURISDICTION
A. Before administrative agencies.
1. Forest Service administrative appeals.
Agencies limit their willingness to entertain administrative appeals, thereby narrowing their jurisdiction to hear challenges under the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), 42 U.S.C. §§ 4321 -4347. ("NEPA"). For example, regulations governing Forest Service administrative appeals that became effective in 2003, 36 C.F.R. Part 215, limit the ability to bring administrative appeals.
One provision in these regulations allows only those who submitted "substantive comments" on the agency's proposal during a thirty-day comment period chosen by the agency to bring administrative appeals. 36 C.F.R. § 215.13(a). Challenges to this limitation on a person's standing to appeal are pending in several federal district courts on grounds it violates the requirement in the Appeals Reform Act, Pub. L. No. 102-381, Title III, § 322, 106 Stat. 1419 (1992) (codified at 16 U.S.C. § 1612 note) ("ARA"), that guarantees the right to appeal to "a person who was involved in the public comment process ... through submission of written or oral comments or by otherwise notifying the Forest Service of their interest in the proposed action." ARA § 322(c) (emphasis added).
In Earth Island Institute v. Pengilly, 376 F.Supp2d 994 (E.D. Cal. 2005), the district court struck down, as a violation of the ARA, two provisions in these regulations that limited the Forest Service's jurisdiction over administrative appeals. The Pengilly court first struck down the rule that project decisions signed directly by the Secretary or Undersecretary of Agriculture constitute the final administrative determination by the Forest Service and are therefore not subject to the Forest Service's notice, comment, and appeal process. 36 C.F.R. § 215.20(b). The court explained:
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The Forest Service cannot, however, attempt to streamline its appeals process by creating an escape hatch that thwarts congressional intent. As the [court in Wilderness Society v. Rey, 180 F.Supp2d 1141, 1148 (D. Mont. 2002)] stated, "[t]he notion that a signature by the Undersecretary transforms the action from Forest Service business to the business of some other agency is mystical legal prestidigitation. The decision, not the signatory, is the operative fact for purposes of the [ARA]."
Id. at 1005.
The Pengilly court also invalidated rules that exempt from appeal projects that are "categorically excluded," i.e. projects for which NEPA does not require the preparation of an environmental assessment ("EA") or environmental impact statement ("EIS"). 36 C.F.R. §§ 215.4(a) and 215.12(f). Prior to these new rules, some Forest Service projects that did not require an EIS or EA under NEPA were explicitly included as projects that would require a decision document and were therefore subject to the agency's appeal process. Included among these were certain timber harvests. The court concluded that under the ARA, "`[a]ctions that concern land and resource management plans,' however, `shall' be subject to notice, comment and appeal procedures. ARA § (a). To read this plain language as allowing exclusion of timber harvests is to `read[] into the statute a drastic limitation that nowhere appears in the words Congress chose.'" Id. at 1004-05.
2. Bureau of Land Management administrative appeals.
43 C.F.R. § 4.410 limits appeals to the Department of Interior's Office of Hearings and Appeals to a "decision" of the Bureau of Land Management ("BLM"). See Defenders of Wildlife, 144 IBLA 250 (1998) (in order to constitute an appealable decision and trigger jurisdiction of the Hearings Division under 43 C.F.R. § 4160.3, such decision would have to adjudicate some material, substantive change, such as an increase in Animal Month Units. An annual grazing bill that results in no material change in the historically authorized grazing is a mere extension of the status quo and is therefore not appealable). But see National Wildlife Federation v. Bureau of Land Management, 145 IBLA 379 (1998) (Even though there was no formal written decision, a verbal agreement between the BLM and a rancher changed the grazing procedures, affected the parties' rights on the public lands, and took specific action. It both established and adjudicated new grazing privileges. For these reasons, it constituted an appealable decision.).
B. In federal courts.
Because NEPA has no provision allowing citizens to sue who allege the statute was violated, challenges to improper NEPA compliance must be brought under the Administrative Procedure Act, 5 U.S.C. § 702. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (NEPA does not provide a private right of action for violations of its provisions. Rather, plaintiffs assert "a right to judicial review under § 10(a) of the [Administrative Procedure Act ("APA")], which provides that `[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.' 5 U.S.C. § 702."). As the Supreme Court explained:
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When ... review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added).
Id.
1. The question of whether NEPA applies precedes the question of whether the court has jurisdiction.
In Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), the Court did not directly deal with jurisdiction over NEPA claims via the APA. However, Justice Scalia wrote that "[b]efore addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place." Id. at 72.
In ruling on whether the Bureau of Land Management had an obligation to supplement the environmental impact statement that accompanied the 1991 land use management plan in order to reflect new information about increased off-road vehicle use, the Court held that "supplementation is necessary only if `there remains `major Federal actio[n]' to occur,' as that term is used in § 4332(2)(C)." Id. at 73. The court explained that "although the `[a]pproval of a [land use plan]' is a `major Federal action' requiring an EIS ... that action is completed when the plan is approved. The land use plan is the `proposed action' contemplated by the regulation. There is no ongoing `major Federal action' that could require supplementation." Id. (citation omitted, emphasis original.)
(a). Post Norton cases.
Since the Supreme Court's decision in Norton, other courts have found that major federal actions the government had proposed and ultimately gone forward with were complete prior to challenges seeking supplemental NEPA compliance. Accordingly, there was no ongoing "major Federal action" that could require supplementation under NEPA.
In Wyoming v. United States Department of the Interior, 360 F.Supp2d 1214, 1235 (D. Wyo. 2005), the court applied Norton and held that after the Department of Interior established a rule authorizing the reintroduction of wolves into Yellowstone National Park, there remained no major federal action to occur. Because the threshold requirement of an ongoing major federal action was not met, the court rejected the argument that a supplemental EIS was required to evaluate the effect of wolves in areas outside those considered in the Final Rule. Id. at 1235-36.
In EMR Network v. Federal Communications Commission, 391 F.3d 269, 272 (D.C. Cir. 2004), the court held that the Federal Communications Commission ("FCC") was not required to supplement its "prior environmental inquiries" about the radiation effects from radios, TVs, and cell phones to include the non-thermal effects of radiation. Citing Norton, the court held that there was no ongoing federal action requiring supplemental NEPA analysis; the FCC regulations had already been adopted. Id. at 272-73.
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In Buckeye Forest Council v. United States Forest Service, 378 F.Supp2d 835, 845 (S.D. Ohio 2005) the court held that the Forest Service was not required to prepare a supplemental EIS to continue implementation of a forest plan, after an endangered bat species...
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