Off-roading Without a Map: the Supreme Court Divides Over Nepa in Southern Utah Wilderness Alliance

• Citation: Vol. 24 No. 2
• Publication year: 2010

Georgia State University Law Review

Volume 24 , „

Article 3

Issue 2 Winter 2007

3-21-2012

Off-Roading Without a Map: The Supreme Court Divides Over NEPA in Southern Utah Wilderness Alliance

Aaron M. Kappler

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Recommended Citation

Kappler, Aaron M. (2007) "Off-Roading Without a Map: The Supreme Court Divides Over NEPA in Southern Utah Wilderness Alliance," Georgia State University Law Review: Vol. 24: Iss. 2, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss2/3

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OFF-ROADING WITHOUT A MAP: THE SUPREME COURT DRIVES OVER NEPA IN SOUTHERN UTAH WILDERNESS ALLIANCE

Introduction

At a recent unveiling of a new sports utility vehicle, William Lash, United States Assistant Secretary of Commerce said, "Going off-road is an American tradition ... there wouldn't be an America if no one went off-road!"¹ Indeed, there are "more than 200,000 miles of forest roads" and more than 36,000 miles of trails in the national forests currently open to off-road vehicle (ORV) use.² An ORV is "any motorized vehicle capable of, or designed for, travel on or immediately over land, water, or other natural terrain."³ In 2004, Americans increasingly used their ORVs, with over 11 million operating their ORVs on national land.⁴ However, despite the increase in popularity of this American tradition, several organizations have staunchly resisted the use of ORVs on forest lands and grasslands because of the problems with erosion, noise, air, and water pollution resulting from ORV use.⁵ These organizations have battled the federal Bureau of Land Management (BLM) and the United States Forest Service (USFS) in federal courts across the country.⁶

1. Steven Cole Smith, Coming: Romanian SUV, orlando sentinel, June 9, 2005, at Fl.

2. Press Release No. FS-0605, U.S. Dep't of Agric. Forest Serv., USDA Forest Service Releases Final Rule for Motorized Recreation in National Forests & Grasslands (Nov. 2, 2005), http://www.fs.fed.us/news/2005/releases/ll/travel-management.shtml.

3. 43 C.F.R. § 8340.0-5(a) (2007).

4. Press Release No. FS-823, U.S. Dep't of Agric. Forest Serv., On The Right Trail! A Forest Service Program for OHV Access (Summer 2005) (on file with the Georgia State University Law Review) [hereinafter FS-823].

5. See, e.g., Off-Road Vehicles—Conservation Policies—Sierra Club, http://www.sierraclub.org/ policy/conservation/offroad.asp (last visited Mar. 15, 2008) (discussing policy of conservation of all lands); Southern Utah Wilderness Alliance: ORVs, http://www.suwa.org/site/PageServer7Pagename =work_orv (last visited Mar. 15, 2008) (discussing the Alliance's commitment to "ensure[] that the wild country . . . [is] protected from the ORV use that has grown out of control in recent years."); Natural Trails and Water Coalition—Stopping Off-Road Vehicle (ORV) Abuse, http://www.naturaltrails.org/ about-us/ (last visited Mar. 15,2007) (discussing disfavor towards ORVs).

6. See e.g., S. Utah Wilderness Alliance v. Babbitt, No. 2:99CV852K, 2000 WL 33914094 (D. Utah Dec. 22, 2000), rev'dsub nom. S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10th Cir. 2002), rev'd, 542 U.S. 55 (2004).

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In a recent legal battle, the Southern Utah Wilderness Alliance (Alliance) filed suit against BLM to force it, among other things, to consider whether supplementation of an environmental impact statement (EIS) was necessary when there was evidence of increased ORV use in federally-managed land in Utah.⁷ After a series of appeals, Justice Scalia, writing for a unanimous Supreme Court, held that increased ORV use is not sufficient to require an agency to evaluate its EIS, because after an agency issues its land use plan there no longer remains any federal action to be taken. This decision could have a significant impact on the national forests and lands across the country, because it allows federal agencies to ignore increased ORV use in an area where the agency has already issued a land use plan.⁹

Therefore, this Comment will consider whether the Court was correct, in light of the clear language of the National Environmental Policy Act (NEPA),¹⁰ Executive Order 11.644,¹¹ and Executive Order 11,989,¹² which require federal agencies to produce a supplemental environmental impact statement when there are significant new circumstances or information relevant to the environmental impact of a government action.¹³

Part I of this Comment provides the legal background surrounding this issue.¹⁴ Part I. A explains the purpose and function of NEPA.¹⁵ Part I.B explains the Federal Land and Policy Management Act.¹⁶ Part I.C explores Executive Orders 11,644 and 11,989.¹⁷ Part ID looks at how the Department of Interior and Department of Agriculture has

7. Id.

8. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 73 (2004).

9. See discussion infra Part III. The purpose of this Comment is not to argue that the Court should have ordered BLM to prohibit the ORVs from public land. Rather, this Comment argues that federal agencies ought to comply with the plain language of the pertinent statutes and regulations in carrying out their duties as federal agencies.

10. National Environmental Policy Act, 42 U.S.C. § 4321 (2000).

11. Exec. Order No. 11,644,37 Fed. Reg. 2877 (Feb. 8, 1972).

12. Exec. Order No. 11,989,37 Fed. Reg. 26,959 (May 24, 1977).

13. See 42 U.S.C. § 4332; Exec. Order No. 11,644, 37 Fed. Reg. 2877 (Feb. 8, 1972); Exec. Order No. 11,989,37 Fed. Reg. 26,959 (May 24,1977); 40 C.F.R. § 1502.9(c)(lXii) (2007).

14. See discussion infra Part I.

15. See discussion infra Part I. A.

16. See discussion infra Part I.B.

17. See discussion infra Part I.C.

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interpreted and promulgated regulations in compliance with NEPA and Executive Orders 11,644 and 11,989.¹⁸ Part II analyzes Southern Utah Wilderness Alliance}⁹ Part III argues that the Court erred in its application of the clear language of the text of the laws. Part IV examines the effects of the Court's holding and suggest that given evidence of increased ORV use, a temporary injunction would be effective at preventing increased environmental damage until the agency reevaluated its EIS in light of the evidence. Finally, the Comment provides an overview of the issue and concludes by proposing a solution.²²

I. Legal Background A. National Environmental Policy Act

1. Overview of NEPA

By enacting the National Environmental Policy Act (NEPA) of 1969, Congress stated that it would thereafter be the national policy of the United States to "encourage productive and enjoyable harmony between man and his environment."²³ In furtherance of this policy, NEPA requires that all federal agencies produce an environmental impact statement (EIS) for any proposals for legislation or other major federal actions "significantly affecting the quality of the human environment."²⁴ The EIS must include "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided,"²⁶ "alternatives to the proposed action,"²⁷ the relationship

18. See discussion infra Part I.C.

19. See discussion infra Part II.

20. See discussion infra Part III.

21. See discussion infra Part IV.

22. See infra Conclusion.

23. National Environmental Policy Act of 1969,42 U.S.C. § 4321 (2000).

24. 42 U.S.C. § 4332(C) (2000).

25. 42 U.S.C. § 4332(C)(i) (2000).

26. 42 U.S.C. § 4332(C)(ii) (2000).

27. 42 U.S.C. § 4332(C)(iii) (2000).

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between local short-term uses . . . [and] long-term productivity,"²⁸ and "any irreversible... commitments of resources."²⁹

Finally, NEPA established the Council on Environmental Quality (CEQ), which is charged with carrying out the purposes and function of NEPA.³⁰ Among other things, CEQ gathers information regarding the current condition and trends of the environment³¹ and reviews and appraises various federal programs in light of NEPA.³² In order to carry out these functions, the CEQ promulgates rules and regulations for other federal agencies to follow in furtherance of NEPA.³³

2. The NEPA Process

As previously stated, the CEQ has promulgated rules that govern how NEPA interacts with federal agencies.³⁴ The CEQ states the purpose of NEPA is to encourage public officials to understand the environmental consequences of their decisions and to "take actions that protect, restore, and enhance the environment."³⁵ NEPA does not mandate that a certain result occur; rather, it only requires that the federal agency consider the adverse effects of its actions on the environment.³⁶

The first step an agency must take under NEPA is to determine whether an EIS must be prepared.³⁷ If the proposed action normally requires an EIS, then the agency must prepare one.³⁸ If the action normally does not require an EIS, then the agency is not required to prepare one.³⁹ Otherwise, the agency shall prepare an environmental

28. 42 U.S.C. § 4332(C)(iv) (2000).

29. 42 U.S.C. § 4332(C)(v) (2000).

30. 42 U.S.C. § 4342 (2000).

31. 42 U.S.C. § 4344(2) (2000).

32. 42 U.S.C. § 4334(3) (2000).

33. See, e.g., 40 C.F.R. §§ 1500.1-1507.3 (2007).

34. Id.

35. 40 C.F.R. § 1500.1(c) (2007).

36. See, e.g., Envtl. Def. Fund, Inc. v. Corps of Eng'rs of U.S. Army, 492 F.2d 1123, 1131-32 (5th Cir. 1974).

37. See Craig N. Johnston et al., Legal Protection of the Environment 89 (2005).

38. 40 C.F.R. § 1501.4(aXl) (2007).

39. 40 C.F.R. § 1501.4(a)(2) (2007).

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assessment (EA) that will provide the agency with sufficient information to determine whether an EIS is required.⁴...