Questionable authority: a recent CEQ guidance memorandum.

• Author: Grothaus, John C.
• Position: Council on Environmental Quality

1. INTRODUCTION II. THE CURRENT STATE OF AFFAIRS IN THE NINTH CIRCUIT A. Great Basin Mine Watch v. Hankins B. Northwest Environmental Advocates v. National Marine Fisheries Service III. HISTORICAL BACKDROP AND EMERGING PRECEDENT A. Lands Council v. Powell B. The CEO's Response to Lands Council v. Powell? C. Ninth Circuit District Courts Address the Guidance Memorandum 1. League of Wilderness Defenders v. U.S. Forest Service 2. Conservation Northwest v. U.S. Forest Service IV. TREATMENT OF CEQ GUIDANCE AND SIMILAR AGENCY STATEMENTS IN THE PAST A. Cabinet Mountains Wilderness v. Peterson B. Christensen v. Harris County C. NationsBank of North Carolina, N.A. v. Variable Annuity Life Insurance Co D. Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service V. THE AUTHORITATIVE WEIGHT DUE CEQ's JUNE 24, 2005 GUIDANCE MEMORANDUM A. Chevron Deference Cannot Apply to the Guidance Memorandum B. Courts Should Not Apply Skidmore Deference to the Guidance Memorandum C. Courts Should Not Apply Auer Deference to the Guidance Memorandum VI. CONCLUSION I. INTRODUCTION

   The National Environmental Policy Act (NEPA) (1) and its implementing regulations require that federal agencies use an evaluative process before undertaking "major Federal actions significantly affecting the quality of the human environment." (2) Among other things, agencies must analyze irreversible resource commitments involved in implementation of the proposed action, alternatives to the action under consideration, and the proposed action's environmental impact. (3) This Chapter discusses the degree of consideration NEPA requires the government to give relevant prior actions when analyzing a proposed action's impacts. In determining whether to undertake an environmentally significant action, the importance of examining in detail the impacts of prior actions cannot be overstated. Without this detailed consideration, a fully informed decision becomes unlikely. Such decisions are vital because the negative effects of inadequate government environmental oversight may span generations, are inescapable, and are often irreversible.

   NEPA mandates a process by which federal agencies examine their proposed actions likely to have a significant effect on the environment, which includes the consideration of an action's cumulative impact in light of prior actions and conditions. NEPA's stated purposes include: "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man [and] to enrich the understanding of the ecological systems and natural resources important to the Nation." (4) NEPA requires all federal agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment" a statement addressing the proposed action's environmental impact in detail. (5) NEPA also created the Council on Environmental Quality (CEQ). (6) CEQ promulgates regulations interpreting NEPA in the Code of Federal Regulations, pursuant to informal rulemaking under the Administrative Procedure Act (APA). (7) CEQ's authority for issuing these regulations is found nowhere within NEPA; the statute makes no mention of CEQ having such power. Rather, CEQ's purported interpretational power regarding NEPA springs from two Executive Orders. The first, issued by the Nixon Administration, required CEQ to "[i]ssue guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment, as required by section 102(2)(C) of [NEPA]." (8) The other Executive Order, issued by the Carter Administration, struck the above quoted section of the Nixon Executive Order and replaced it with the following language, requiring CEQ to:

   Issue regulations to Federal agencies for the implementation of the procedural provisions of [NEPA] (43 U.S.C. 4332(2)). Such regulations shall be developed after consultation with affected agencies and after such public hearings as may be appropriate. They will be designed to make the environmental impact statement process more useful to decisionmakers and the public.... (9) CEQ's regulations state the details of what must be included in an environmental impact statement (EIS) under NEPA and courts generally accept them as authoritative. (10) They provide factors agencies must consider in determining the scope of an EIS. One regulation provides that "[t]o determine the scope of environmental impact statements, agencies shall consider ... [c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement." (11) The CEQ regulation central to this Chapter defines "cumulative impact" as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." (12) CEQ's authoritative regulations therefore require agencies to include within the scope of an EIS prior actions that contribute to the cumulative impact of the action under consideration. However, these regulations do not specify whether the effects of cumulatively significant prior actions must be addressed individually in an EIS or may be considered in the aggregate, as part of the environmental baseline.

   The difference between analyzing the effects of cumulatively significant prior actions on an individual basis, as opposed to considering such effects in the aggregate as part of the environmental baseline, is important. Lands Council y. Powell (13) illustrates this point. In Lands Council, plaintiff environmental groups challenged the cumulative impacts analysis of a U.S. Forest Service (USFS) EIS examining a proposed timber sale. (14) The USFS EIS considered the environmental impacts of prior harvests in the aggregate, "contain[ing] only vague discussion of the general impact of prior timber harvesting, and no discussion of the environmental impact from past projects on an individual basis." (15) The court indicated that a separate discussion of prior harvests from individual projects would have "aid[ed] the public in assessing whether one form or another of harvest would assist the planned forest restoration with minimal environmental harm." (16) The ability to analyze proposed actions in light of the discrete effects of prior actions is necessary to making an informed decision. When relevant prior actions are lumped into the environmental baseline and considered in the aggregate, the lessons of such actions are effectively removed from the decision making process. Such aggregation may also lead to a false sense of security, in which prior degradation is taken for granted because it is considered part of the environmental baseline.

   The subject of this Chapter is a June 24, 2005 CEQ guidance memorandum (Guidance Memorandum) (17) attempting to promote the view that, under the CEQ regulation at 40 C.F.R. [section] 1508.7, an agency's EIS generally need only address cummulatively significant prior environmental actions in the aggregate, incorporating those actions into the environmental baseline rather than considering their individual cumulative impacts. (18) Courts should decline to give the Guidance Memorandum deference because its recommendations are fundamentally at odds with NEPA's policy statements and because CEQ's authority to promulgate it is on shaky statutory grounds. This Chapter begins by considering two 2006 Ninth Circuit cases discussing the manner in which an EIS must address cumulatively significant prior environmental actions, demonstrating how these cases are at odds with the Guidance Memorandum. Next, the Chapter examines the two instances where Ninth Circuit district courts have addressed the Guidance Memorandum directly and accorded it more deference than it is due. The Chapter proceeds to analyze courts' treatment of other CEQ guidance promulgated in a similar manner to the Guidance Memorandum, as well as courts' treatment of materials from other agencies analogous to the Guidance Memorandum. The Chapter concludes by demonstrating that the Guidance Memorandum is entitled to little, if any, authoritative weight.

2. THE CURRENT STATE OF AFFAIRS IN THE NINTH CIRCUIT

   The Ninth Circuit is on the verge of a controversy regarding the manner in which government agencies must account for prior actions when examining the cumulative impact of a proposed environmentally significant action under NEPA. In two cases issued in 2006, Great Basin Mine Watch v. Hankins (19) and Northwest Environmental Advocates v. National Marine Fisheries Service (NWEA), (20) the Ninth Circuit held that for an EIS to be valid it must describe the effects of past actions that have a cumulative impact on the proposed action; merely listing past actions of cumulative significance without describing their effects is insufficient. (21) The reasoning the Ninth Circuit employed in Great Basin and NWEA is quite similar to that which it used in an opinion published in its final, amended form on January 24, 2005, in Lands Council. (22) These three opinions are at odds with the June 24, 2005 Guidance Memorandum, which provides that "[a]gencies are not required to list or analyze the effects of individual past actions unless such information is necessary to describe the cumulative effect of all past actions combined," and they have "substantial discretion" regarding the proper depth of analysis. (23) The Guidance Memorandum suggested an outcome for this use of discretion, asserting that "[g]enerally, agencies can conduct an adequate cumulative effects analysis by focusing on the current aggregate effects of past actions without delving into the historical details of...