The Ninth Circuit's differential approach to alternatives analysis in NEPA cases: Westlands Water District v. United States Department of Interior.

• Author: Baker-Jud, Shems
• Position: National Environmental Policy Act

1. INTRODUCTION II. THE NINTH CIRCUIT'S APPROACH TO NEPA ALTERNATIVES ANALYSIS III. THE NINTH CIRCUIT'S LIMITED RANGE OF ALTERNATIVES FOR CONSERVATION ACTIONS A. The Trinity River Division and Background of Westlands Water District v. United States Department of Interior B. The Ninth Circuit's Analysis in Westlands Water District v. United States Department of Interior C. The Ninth Circuit's Analysis in Kootenai Tribe of Idaho v. Veneman IV. THE NINTH CIRCUIT'S RANGE OF ALTERNATIVES ANALYSIS FOR NON-CONSERVATION ACTIONS V. THE IMPLICATIONS OF THE NINTH CIRCUIT'S APPROACH A. Limiting NEPA's Use as an Obfuscatory Tool B. Doing Away With Alternatives Analysis Under the Healthy Forests Initiative VI. CONCLUSION I. INTRODUCTION

   The Trinity River rises in the rugged mountains of northern California and tumbles southward, picking up mountain rills, creeks, and full-blown rivers before thundering northwest toward the Klamath River in narrow granite-sided gorges and powerful emerald slicks. Historically, the Trinity River hosted enormous runs of salmon and steelhead, (1) sustaining the Hoopa and Yurok tribes as well as abundant wildlife and eventually commercial and sport fishermen. (2) Beginning in 1964, the Trinity River Division (TRD) of the Central Valley Project (CVP) diverted the majority of the river southward, through the Sacramento River, (3) to irrigate farmland in California's Central Valley. (4) The diversion also provided much needed water flows for endangered Sacramento River winter chinook (Oncorhynchus tshawytsha) and threatened delta smelt (Hyponesus transpacificous) imperiled by warm, low water conditions in the Sacramento River and high salinity in the San Francisco Bay Delta. (5)

   After allowing the CVP to divert the river for several decades, (6) Congress sought in 1984 to resurrect fish and wildlife populations in the Trinity River Basin. To that end, Congress passed two statutes (7) and directed the Secretary of the Interior to complete the Trinity River Flow Evaluation (TRFE) by 1996. (8) The TRFE was initiated by the Secretary in 1981 to study the damage to the fishery caused by the TRD. (9) The Fish and Wildlife Service (FWS), in conjunction with the Hoopa Tribe, conducted the study, which concluded that increased flows mimicking natural conditions would be the most effective way to restore the fishery. (10) The TRFE recommended a permanent increase in water flows that would vary depending on yearly precipitation. (11) A draft environmental impact statement (DEIS), released in October 1999, considered this proposal along with several alternatives. (12) The final EIS, completed in November 2000, recommended implementation of the preferred TRFE flow augmentation plan in the Record of Decision (ROD) issued later that year. (13)

   Westlands Water District (Westlands), the largest water district in California, filed suit following the release of the ROD, alleging that the EIS failed to comply with the National Environmental Policy Act (NEPA). (14) Specifically, Westlands argued that the range of alternatives addressed in the EIS failed to satisfy NEPA because the FWS statement of purpose and need, which determined the scope of the alternatives in the EIS, was based solely on the objective of increasing river flows, and was therefore impermissibly narrow. (15) The district court agreed, finding that the EIS had improperly narrowed the statement of purpose, and thus had failed to consider a reasonable range of alternatives. (16) The court enjoined full implementation of the recommended flow, (17) and directed the Department of the Interior to implement non-flow restoration measures such as bank restoration and vegetation development. (18)

   FWS appealed the district court decision, and the Ninth Circuit rejected Westlands' challenge. (19) The court held that FWS had sufficient discretion to narrow the range of alternatives to consider only those alternatives that would fulfill the stated goals of the EIS: Trinity River anadromous salmonid habitat restoration. (20) The Ninth Circuit gave highly deferential treatment to the FWS statement of purpose and need, which concluded that only increased flows could create the desired improvements in salmonid habitat, thereby upholding a constrained range of alternatives for this proposed action. (21)

   The central question addressed in this Chapter is whether the Ninth Circuit has adopted a variable approach to NEPA alternatives analysis that is dependent on the nature of the proposed action. More specifically, has the Ninth Circuit adopted a narrower definition of a reasonable range of alternatives for conservation actions than for non-conservation actions? If so, does the court's approach comply with NEPA, either as intended by its drafters or as interpreted by the Supreme Court?

   Part II of this Chapter supplies a brief background of NEPA and the general framework the Ninth Circuit employs to determine the validity of the range of alternatives. Part III focuses on Westlands Water District v. United States Department of Interior (Westlands II), examining whether that case complies with the general Ninth Circuit NEPA framework. Part III then considers the decision in Kootenai Tribe of Idaho v. Veneman (Kootenal), (22) where the Ninth Circuit explicitly stated its analysis of the range of alternatives the agency is required to study is less rigorous if the proposed action is primarily designed to conserve the environment. (23)

   Part IV compares the analysis in Westlands II and Kootenai with the Ninth Circuit's range of alternatives analysis concerning non-conservation actions, evaluating cases in which the court upheld the agency's range of alternatives, as well as those in which it did not. Part V considers the goals of NEPA and argues that the Ninth Circuit's approach will reduce procedural impediments, thus making it more difficult for opponents to use NEPA to challenge conservation actions. Part V then contrasts the Ninth Circuit's approach with the Bush Administration's limitations on required alternatives analysis under the Healthy Forest Initiative.

   Both the Bush Administration's and the Ninth Circuit's approach to NEPA indicate the widespread belief that compliance with NEPA's stringent requirements can stifle important projects. Nevertheless, the Ninth Circuit's approach accords with NEPA's broad policy goals, while the Administration's approach does not. Part VI concludes that the Ninth Circuit's variable approach to NEPA's alternatives, which is dependent on the nature of the proposed action, permits agencies to analyze a narrower range of alternatives for conservation actions than for proposed resource extraction or development projects. This case by case analysis, based on the likely environmental outcome of the action, is consistent with the spirit of NEPA because it will enable agencies to implement environmentally beneficial actions more easily, but it is inconsistent with Supreme Court precedent since it transforms NEPA into a quasi-substantive tool, resulting in different outcomes depending on the nature of the proposed action.

2. THE NINTH CIRCUIT'S APPROACH TO NEPA ALTERNATIVES ANALYSIS

   In 1970, Congress passed the visionary National Environmental Policy Act that declared the federal government and federal agencies would no longer be a part of the nation's environmental problem, but rather would become part of the solution. NEPA essentially contains two core provisions: the aspirational goals laid out in section 101 and the procedural requirements laid out in section 102. Section 101(a) provides in pertinent part:

   [t]he Congress ... declares that it is the continuing policy of the Federal Government ... to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (24) Section 101(b) then describes specific responsibilities of the Federal Government, which include acting as a trustee of the environment for future generations, providing a healthy, productive, and aesthetically pleasing environment, and attaining the widest possible range of beneficial uses without degradation to the environment. (25) In 1978, the Council on Environmental Quality (CEQ) issued implementing regulations further clarifying NEPA's goals. (26) Among other things, the regulations stated that "[t]he NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." (27)

   Despite CEQ's interpretation of NEPA, the Supreme Court has repeatedly held that NEPA is not substantive, but merely procedural, (28) limited to insuring that agencies take a "hard look" at the proposed action in order to reach considered decisions. (29) Thus, NEPA does not require agencies to pursue any specific action, provided the procedural requirements of the Act have been met.

   To satisfy NEPA's procedural requirements, agencies must prepare a statement on the environmental impact of the proposed action and "a detailed statement by the responsible official on ... alternatives to the proposed action." (30) NEPA implementing regulations clarify that every EIS must assess not only the environmental consequences of the action, but also reasonable alternatives to that action. (31) The regulations describe alternatives analysis as "the heart of the environmental impact statement," because it "sharply define[s] the issues" and gives both the decision maker and the public a clear basis upon which to determine the merits of the proposed action. (32) Importantly, the regulations also require agencies consider a no-action alternative, which serves as a baseline to judge the value of the other alternatives. (33)

   Ultimately, in the Ninth Circuit and elsewhere, the statement of purpose dictates the...