Madeline Gwyn, Monsanto Co. v. Geertson Seed Farms: Irreparable Injury to the National Environmental Policy Act?

• Publication year: 2011

MONSANTO CO. V. GEERTSON SEED FARMS: IRREPARABLE INJURY TO THE NATIONAL ENVIRONMENTAL

POLICY ACT?

ABSTRACT

The Supreme Court recently embarked on a path toward removing the only teeth the National Environmental Policy Act (NEPA) has—its procedural mandates. In Winter v. Natural Resources Defense Council, Inc. and, more recently, in the controversial case Monsanto Co. v. Geertson Seed Farms, the Court declined to issue an injunction against federal agency action despite the agency’s failure to complete an Environmental Impact Statement (EIS) regarding the action, as required by NEPA. The Court reasoned that environmental plaintiffs must show a “likelihood” of environmental harm to meet the irreparable-injury requirement of injunctive relief. Additionally, the Court held that an agency’s failure to complete an EIS, with nothing more, does not establish a likelihood of environmental harm. By declining to issue an injunction, the Court failed to ensure that an EIS would be completed before the federal agency reached a decision or foreclosed less harmful alternatives.

Because of Winter’s and Geertson’s unique facts, the holdings of these cases can be limited. That is, these cases should not be interpreted to espouse the typical approach to a NEPA case. This Comment explains how Winter and Geertson can be interpreted narrowly to harmonize with the well-established precedents of Weinberger v. Romero-Barcelo and Amoco Production Co. v. Village of Gambell, which urge that the purpose of the relevant statute be considered when deciding whether to issue an injunction. The purpose of NEPA—facilitating informed agency decision making—can be effectuated only through the Act’s procedural mandates because the Act has no substantive mandates. Therefore, irreparable injury should be presumed when an agency has violated the Act’s procedural requirements. A showing of environmental harm should be unnecessary. Ultimately, this presumption would put environmental plaintiffs on equal footing with defendants and force agencies to take their obligations under NEPA seriously.

INTRODUCTION 350

1. OVERVIEW OF NEPA AND ITS ENFORCEMENT THROUGH JUDICIAL REVIEW 354

   1. NEPA and Its Goals, Effectuated Through Its Procedures 354

   2. Judicial Review of Agency Compliance with NEPA 358

2. THE HISTORY OF ISSUING INJUNCTIONS FOR VIOLATIONS OF

   ENVIRONMENTAL STATUTES, WITH A FOCUS ON NEPA 360

   1. Issuing Injunctions for Violations of Environmental Statutes Other than NEPA: Looking to the Purpose of the Statute 360

   2. Issuing Injunctions for Violations of NEPA 365

      1. Lower Federal Courts’ Jurisprudence: What Is the Purpose of NEPA? 365

      2. Winter and Geertson: The Supreme Court’s Evisceration

         of NEPA? 369

3. WHY WINTER AND GEERTSON ARE NOT THE END OF NEPA 376

   1. How to Limit Winter and Geertson in the Future 376

   2. How to Harmonize Winter and Geertson with Precedent and

the Purpose of NEPA 379

CONCLUSION 387

INTRODUCTION

As one of the first major congressional environmental laws, the National Environmental Policy Act of 19691 (NEPA) represents a historical and fundamental shift in how United States policy makers conceptualize the federal government’s relationship with the natural environment.2 Using sweeping language, NEPA announces its lofty goals “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.”3 But in the recent and controversial4 decision of Monsanto Co. v.

1 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321–4375 (2006 &

Supp. IV 2010)).

2 See ROBERT L. GLICKSMAN ET AL., ENVIRONMENTAL PROTECTION: LAW AND POLICY 229 (5th ed.

2007).

3 42 U.S.C. § 4331(a).

4 See Andrew Pollack, U.S. Approves Genetically Modified Alfalfa, N.Y. TIMES, Jan. 28, 2011, at B1; Paul Voosen, USDA’s Alfalfa Decision Postpones Reckoning on Biotech Crops, N.Y. TIMES (Jan. 28, 2011),

http://www.nytimes.com/gwire/2011/01/28/28greenwire-usdas-alfalfa-decision-postpones-reckoning-on-69 218.html?pagewanted=all.

Geertson Seed Farms, the Supreme Court ignored NEPA’s purpose by declining to issue an injunction against an agency in violation of the Act.5 As a result, the Court may have significantly weakened the force of NEPA.

Before the enactment of NEPA, the environmental effects of federal agency actions went unrecognized, at least formally.6 Now, NEPA commands agencies to consider the potential environmental effects of the vast majority of their decisions.7 The importance of this requirement is suggested by its status as NEPA’s sole mandate.

Unlike most legislation, NEPA contains no substantive requirements, such as emission limits on a particular pollutant. Rather, it ensures that agencies follow certain procedures before moving forward with major decisions.8 Specifically, NEPA requires agencies to prepare formal Environmental Impact Statements (EISs) for proposed actions.9 Only after doing so may an agency decide whether to implement the particular action in question.10

Although NEPA was passed with lofty goals in mind, the Act’s lack of substantive requirements means that agencies have some discretion in deciding how much weight to give to the findings uncovered by their EISs.11 Indeed, after the completion of an EIS, an agency only has to “[s]tate what [its]

decision was,” “[i]dentify all alternatives considered by the agency in reaching its decision,” “identify and discuss all such factors including any essential considerations of national policy which were balanced by the agency in making its decision and state how those considerations entered into its decision,” and “[s]tate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if

not, why they were not.”12 An agency is not required to abandon a proposed

action if the agency’s EIS reveals the potential for environmental harm.13

5 130 S. Ct. 2743, 2761 (2010).

6 See GLICKSMAN ET AL., supra note 2, at 229.

7 See 42 U.S.C. § 4332(C).

1. Id.

2. Id.

3. 40 C.F.R. § 1506.10(b) (2011) (“No decision on the proposed action shall be made or recorded . . . by a Federal agency until the later of the following dates: (1) Ninety (90) days after publication of the notice . . . for a draft environmental impact statement. (2) Thirty (30) days after publication of the notice . . . for a final environmental impact statement.”).

11 See id. § 1505.2(a)–(c).

1. Id.

2. See id. However, if an EIS uncovers a potential violation of another substantive environmental statute, an agency may have to alter its proposed course of action.

   Despite NEPA’s lack of substantive requirements, Congress envisioned the Act as a powerful piece of legislation, the procedural requirements of which were meant to be taken seriously.14 NEPA has proven that it is indeed powerful. Environmental plaintiffs suing for NEPA violations enjoy a success rate of about 44% in district courts and about 32% in circuit courts.15 The Act has been successfully invoked at least 237 times between 2005 and 2009 alone to require agencies to more thoroughly assess the environmental impacts of a proposed action.16

   
   

   Because NEPA consists only of procedural requirements that force agencies to consider the environmental implications of their actions, it follows that these procedures must be completed before an agency decides to embark on a specific course of action. If not, NEPA would become a nullity. A simple example serves to illustrate why. Imagine that the Federal Highway Administration (FHWA) approves construction of a major highway, a small portion of which would pass through a vast forest. FHWA then begins its EIS after hiring contractors for the job and consulting with engineers, but before the forest has been touched. FHWA later discovers, through creating its EIS, that the forest is an unadulterated and biologically diverse ecosystem. What should FHWA do now that it already has spent money, time, and other resources on planning this project? Similarly, imagine that an environmental group challenged FHWA’s premature approval of the project. Should the reviewing court issue an injunction barring further planning or work on the project until the EIS is completed to prevent the type of problem described above?

   
   

   The Supreme Court addressed issues similar to these in two recent decisions. This Comment analyzes the Court’s trend of becoming less willing to issue injunctions when a violation of NEPA has occurred. This Comment argues that, by allowing an agency to reach, and sometimes even act on, its decision before completion of an EIS, the Court is decreasing NEPA’s

   
   

3. See 42 U.S.C. § 4332 (stating that the procedural requirements of NEPA must be completed “to the fullest extent possible”).

4. JAY E. AUSTIN ET AL., ENVTL. LAW INST., JUDGING NEPA: A “HARD LOOK” AT JUDICIAL DECISION

   MAKING UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT 8–9 (2004), available at http://www.

   endangeredlaws.org/pdf/JudgingNEPA.pdf.

5. See NEPA Litigation, NAT’L ENVTL. POL’Y ACT, http://ceq.hss.doe.gov/legal_corner/litigation.html (follow the 2001 through 2009 “Litigation Survey” hyperlinks) (last visited Feb. 22, 2012). This figure is the

result of adding all instances when a court held that an agency’s categorical exclusion, Environmental Assessment (EA), or EIS was inadequate; compliance with NEPA was required; or a supplemental EIS was needed. See id.

effectiveness and undermining its important purpose of ensuring informed agency decision making. By essentially changing the timeline along which an agency may complete an EIS, the Court may be removing the only teeth that NEPA possesses—its procedural mandates.

Part I of this Comment provides a brief overview of NEPA, including the procedures agencies must follow under the Act. It shows that NEPA is a dead letter when agencies are allowed to reach or act on their decisions before completing EISs. Part I then concludes with an explanation of the standard that courts employ to review an agency’s compliance with NEPA and argues that...