NEPA BEFORE THE INTERIOR BOARD OF LAND APPEALS: PROCEDURE OR SUBSTANCE?
| Jurisdiction | United States |
(Oct 2010)
NEPA BEFORE THE INTERIOR BOARD OF LAND APPEALS: PROCEDURE OR SUBSTANCE?
Administrative Judge
Interior Board of Land Appeals
Arlington, Virginia
JUDGE JAMES F. ROBERTS has been an Administrative Judge on the Interior Board of Land Appeals, U.S. Department of the Interior, since March 2000. He served as the Board's Docket Attorney from 1990 until his appointment as Administrative Judge. Prior to joining the Board, he was in private practice with Stites & Harbison in Louisivlle, Kentucky. He received a B.A. in English and Art from Berea College, Berea, Kentucky, in 1974; an M.A. in English from Louisiana State University in 1976; a J.D. from the University of Kentucky College of Law in 1979; and an LL.M. in International Law from Columbia University in 1985.
I. Introduction
A. Standard of Review-General Rule
The Bureau of Land Management (BLM) is required by section 102(2)(C) of NEPA to consider the potential environmental impacts of a proposed action in an environmental impact statement (EIS) when it intends to engage in a major Federal action which significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C) (2000); Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir. 1985). In making the threshold determination of whether an EIS is necessary, the agency may prepare an environmental assessment (EA) documenting its consideration of all relevant matters, and the agency may go forward with the project if the analysis in the EA establishes that the project will not have a significant impact on the human environment. Evans-Barton, LTD, 175 IBLA 29, 32 n.2 (2008); see also 40 C.F.R. § 1504.4 ; Gerald H. Scheid, 173 IBLA 387, 395-96 (2008).
B. Challenge to an EIS
In the recent opinion in Bristlecone Alliance (Bristlecone), 179 IBLA 51 (2010), the Board provided the following statement of the standard of review to be applied when the agency has prepared an EIS for a disputed action:
We will begin our NEPA analysis, as did BLM, by quoting from Wyoming Outdoor Council, 176 IBLA 15 (2008), in which the Board set forth the following legal framework for evaluating challenges to NEPA compliance:
NEPA is a procedural statute designed to "insure a fully informed and well-considered decision." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (1978). NEPA does not bar actions which affect the environment, even adversely. Rather, the process assures that decisionmakers are fully apprised of likely effects of alternative courses of action so that selection of an action represents a fully informed decision. In re Bryant Eagle Timber Sale, 133 IBLA 25, 29 (1995). When BLM has satisfied the procedural requirements of section 102(2)(C) of NEPA, it will be deemed to have complied with NEPA, regardless of whether a different substantive outcome would be reached by appellants, this Board, or a reviewing court. National Wildlife Federation, 169 IBLA 146, 155 (2006).
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An EIS is judged by whether it constitutes a "detailed statement" that takes a "hard look" at the potentially significant environmental consequences of the proposed Federal action and reasonable alternatives thereto, considering all relevant matters of environmental concern. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976); Western Exploration Inc., 169 IBLA 388, 399 (2006); Southwest Center for Biological Diversity, 154 IBLA 231, 236 (2001); see 40 C.F.R. § 1502.2(a). We are guided by a "rule of reason." IMC Chemical, Inc., 155 IBLA 173, 195 (2001). The EIS must contain a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" of the proposed action and alternatives. California v. Block, 690 F.2d 753, 761 (9th Cir. 1982), quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). Significant impacts are expected when an agency prepares an EIS. Western Exploration Inc., 169 IBLA at 399, citing 40 C.F.R. § 1502.16 (EIS must include discussion of "adverse environmental effects which cannot be avoided"); 42 U.S.C. § 4332(2)(C) (2000) (EIS required when significant impacts are found. [Footnote omitted].
176 IBLA at 25 (quoting Biodiversity Conservation Alliance, 174 IBLA 1, 13-14 (2008)).
An appellant bears the burden to show, by a preponderance of the evidence, with objective proof, that "BLM failed to adequately consider a substantial question of material significance to the proposed action, or otherwise failed to abide by section 102(2)(C) of NEPA." Id. Further, when issues of a highly technical nature are involved, BLM may rely upon the opinions of its technical experts concerning matters within their expertise, and a challenge to those opinions, which are reasonable and supported by the record, must demonstrate, by a preponderance of the evidence, error in data, methodology, analysis, or conclusions of the experts. Id. (citations omitted). Mere differences of opinion, even expert opinions, do not suffice to prove a failure by BLM to comprehend the nature or scope of a significant impact. Id. (citing Fred E. Payne, 159 IBLA 69, 78 (2003)).
179 IBLA at 59-60 (footnotes omitted).
C. Challenge to an EA
Section 102(2)(C) of NEPA requires consideration of potential impacts of a proposed action in an environmental impact statement (EIS) if that action is a "major Federal action significantly affecting the quality of the human environment."
42 U.S.C. § 4332(2)(C) (2000). A BLM decision approving an action based on an EA and finding of no significant impact (FONSI), absent preparation of an EIS, generally will be
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affirmed if BLM has taken a "hard look" at the proposal being addressed and identified relevant areas of environmental concern so that it could make an informed determination as to whether the proposal's impacts are insignificant or will be reduced to insignificance by the adoption of appropriate mitigation measures. Biodiversity Conservation Alliance, 169 IBLA 321, 331 (2006); National Wildlife Federation, 169 IBLA 146, 154-55 (2006); Rainer Huck, 168 IBLA 365, 401 (2006); Colorado Mountain Club, 161 IBLA 371, 381-82 (2004). In determining whether BLM took a hard look at environmental consequences, including cumulative impacts, the Board is guided by a rule of reason. See National Wildlife Federation, 169 IBLA at 155; Colorado Mountain Club, 161 IBLA at 381.
The "rule of reason" was described in Don't Ruin Our Park v. Stone, 802 F. Supp. 1239, 1247-48 (M.D. Pa. 1992):
An EA need not discuss the merits and drawbacks of the proposal in exhaustive detail. By nature, it is intended to be an overview of environmental concerns, not an exhaustive study of all environmental issues which the project raises. If it were, there would be no distinction between it and an EIS. Because it is a preliminary study done to determine whether more in-depth study analysis is required, an EA is necessarily based on "incomplete and uncertain information." Blue Ocean Preservation Society v. Watkins, 767 F.Supp. 1518, 1526 (D. Hawaii 1991) . . . . So long as an EA contains a "'reasonably thorough discussion of . . . significant aspects of the probable environmental consequences,'" NEPA requirements have been satisfied. Sierra Club v. United States Department of Transportation, 664 F.Supp. 1324, 1338 (N.D. Ca. 1987), . . . quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). [Footnote deleted.]
See 40 C.F.R. § 1508.9; 46 Fed. Reg. 18026, 18037 (Mar. 23, 1981);13 Scientists' Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C. Cir. 1973); Missouri Coalition for the Environment, 124 IBLA at 219-20. As we said in Oregon Natural Resources Council, 116 IBLA at 361 n.6:
[Section 102(2)(C) of NEPA] does not direct that BLM take any particular action in a given set of circumstances and, specifically, does not prohibit action where environmental degradation will inevitably result. Rather, it merely mandates that whatever action BLM decides upon be initiated only after a full consideration of the environmental impact of such action.
A party challenging BLM's decision has the burden of demonstrating with objective proof that the decision or FONSI is premised on a clear error of law or a demonstrable error of fact, or that BLM failed to consider a substantial environmental question of material significance to the proposed action. Biodiversity Conservation Alliance, 169 IBLA at 155; National Wildlife Federation, 169 IBLA at 155; Rainer Huck, 168 IBLA at 402. Mere differences of opinion about the likelihood or significance of environmental impacts provide no basis for reversal. Oregon Chapter of the Sierra Club, 172 IBLA 27, 46-47 (2007); Western Slope Environmental Resource Council, 163 IBLA 262, 285 (2004); Colorado Mountain Club, 161 IBLA at 381; San Juan Citizens Alliance, 129 IBLA 1, 14 (1994).
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II. Bristlecone: the Limits of IBLA Review
Bristlecone involved ROWs for construction and operation of the White Pine Energy Station (WPES), a coal-fired power plant in White Pine County, Nevada. Under section 501(a)(6) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1761(a)(6) (2006), BLM has the discretion to accept or reject an ROW application. The Board will affirm a BLM decision approving or rejecting an ROW application where the record shows that the decision represents a reasoned analysis of the factors involved made with due regard for the public interest, and where no reason is shown to disturb BLM's decision. Santa Fe Northwest Information Council, 174 IBLA 93, 104 (2008); James Shaw, 130 IBLA 105, 115 (1984); Mark Patrick Heath, 163 IBLA 381, 388 (2004). As we have said, to successfully challenge a discretionary decision,
[t]he burden is upon an appellant to demonstrate by a preponderance of the evidence, that BLM...
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