THE DEVIL IN NEPA'S DETAILS: AMENDING NEPA TO PREVENT STATE INTERFERENCE WITH ENVIRONMENTAL REVIEWS.

• Author: Kulesza, Clay F.
• Position: National Environmental Policy Act of 1969

TABLE OF CONTENTS INTRODUCTION 1042 I. BACKGROUND 1043 A. Environmental Review Under NEPA 1044 B. Breach of NEPA and the APA 1047 II. NEPA'S CURRENT FLAW AND THE CIRCUIT COURT SPLIT 1048 A. Limehouse and the NEPA Cause of Action 1049 B. The Other Circuit Courts 1052 III. A PROPOSED CONGRESSIONAL AMENDMENT TO NEPA 1054 A. A Citizen Suit Provision Under NEPA 1055 B. Solving the Current Controversy 1057 1. Private Action Against State Actors and Agencies 1057 2. Preventing Irreversible Interference 1058 C. Comparison to Other Environmental Statutes with Citizen Suit Provisions 1060 IV. COUNTERARGUMENTS 1062 A. Waste of Judicial Resources 1063 B. Maintaining the Status Quo 1064 CONCLUSION 1066 INTRODUCTION

The environment is susceptible to human harms because it lacks a voice of its own. Yet environmentalists have used their voices for generations to promote environmental protection, causing Congress to pass a variety of laws that prevent needless environmental destruction. The National Environmental Policy Act of 1969 (NEPA) advances this goal by directing the federal government to undergo an environmental review process anytime it wants to begin a project that could have detrimental environmental impacts. (1) This process ensures that the federal government knows how a project will impact the environment and whether any feasible alternatives to a project may have less of an impact on the environment. (2)

However, problems can arise when state agencies circumvent NEPA and interfere with the mandated environmental review to reach a result that ultimately benefits the state but harms the environment. Such was the case in Minnesota in July 2014. (3) While the federal government was studying the impacts of a proposed railroad that would cut through an environmentally sensitive area, the Minnesota state government began making deals with cities in the region concerning the path of the tracks. (4) The federal agency in charge of the project could have chosen a different route for the tracks--one that either did not cut through the protected area or that included efforts to minimize the environmental damage--but the state agency's actions essentially ensured the tracks would be laid in the exact way the state wanted. (5)

A local environmental group attempted to enjoin the agencies from deviating from NEPA's strict guidelines, but the Court of Appeals for the Eighth Circuit held that the statute did not permit the group to bring a private cause of action against state officials. (6) The case was dismissed, and the court neither reprimanded the state for interfering with the federal government's planning efforts nor prevented the state from interfering further in future projects. (7)

This problem is not unique to environmental groups in Minnesota. The way in which Congress wrote NEPA has caused citizen groups around the country to confront this same issue. (8) This Note contends that Congress should amend the National Environmental Policy Act of 1969 to include a specific "citizen suit" provision that would authorize concerned individuals and environmental groups to bring private causes of action against state actors and agencies to prohibit states from unduly interfering with NEPA's environmental review process.

Part I explains how NEPA currently functions and how environmental groups can allege violations of the statute in federal court. Part II explores a particular flaw in NEPA's application and examines the current circuit court split concerning different interpretations of the statute. Building upon this foundation, Part III proposes that Congress should amend NEPA to include a citizen suit provision, thus resolving the circuit court split and providing federal courts with some much-needed clarity on the scope of NEPA's application to state actors. Part IV addresses potential counterarguments before concluding that the proposed citizen suit provision will best protect against environmental harms.

1. BACKGROUND

   It is essential to understand what NEPA requires and how citizens can raise NEPA challenges in order to recognize the particular flaw in the statute this Note analyzes. Section A examines the environmental review process that NEPA mandates while Section B explains how plaintiffs can challenge NEPA violations through the Administrative Procedures Act (APA).

   1. Environmental Review Under NEPA

      NEPA revolutionized the federal government's decision-making process. Congress stated that the Act's purpose was "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment." (9) When setting this national policy, Congress mandated that the federal government develop and administer all federal policies, regulations, and laws in accordance with NEPA and its goal of achieving environmental-human harmony. (10) This policy focused the government's attention on the environmental impacts of any proposed action instead of allowing decision makers to simply ignore the damage they inflicted on the environment (as had been the trend in the preceding years). (11)

      NEPA is a procedural statute (12) and thus requires federal actors to build environmental reviews into their decision-making processes. (13) To accomplish its goal of striking a balance between human progress and environmental health, Congress established a set of procedural requirements that the federal government must adhere to whenever the government proposes any "major Federal actions significantly affecting the quality of the human environment." (14) The most notable of these procedural requirements is the preparation of an Environmental Impact Statement (EIS). (15) These documents address a number of environmental concerns, including (1) the total "environmental impact of a proposed action"; (2) the unavoidable environmental damage the action would cause if implemented; and (3) reasonable "alternatives to the proposed action." (16) A completed EIS is incredibly detailed and can be hundreds or even thousands of pages long, (17) but the finalized version represents the federal government's attempt to consider every possible impact that a project could have on the environment. (18)

      The White House Council on Environmental Quality (CEQ)--an executive agency created by NEPA--is responsible for promulgating regulations that define and clarify the EIS process for federal agencies. (19) Federal actors must first publish a draft of the EIS and invite public comment. (20) Publishing a draft EIS is crucial to the NEPA process as it gives notice to the public and other regulatory agencies of a project's potential environmental impacts. (21) Once the comment period ends, the responsible federal agency publishes a finalized EIS, which represents the completed environmental review of the project and responds to the previously received comments. (22) Finally, the federal agency must publish a "record of decision" (ROD) document that identifies the final action that the agency chose, the alternatives the agency considered, and the explicit reasons for why the agency did not choose each alternative. (23) The CEQ promulgated a particularly important regulation that prohibits an agency from taking any action during the environmental review process that would adversely impact the environment or eliminate any reasonable alternatives to the proposed project. (24) This requirement preserves the statute's integrity by ensuring that the agency has seriously considered the potential consequences of its actions before taking any significant steps to begin a project. (25)

      However, as previously stated, NEPA is a procedural statute. (26) While federal agencies must consider the environmental impacts of a project and possible alternatives, the statute does not require the government to take one course of action over another. (27) NEPA ensures that a federal agency "take[s] a 'hard look' at [the] environmental consequences" (28) of its actions, but does not ultimately prevent the government "from deciding that other values outweigh the environmental costs." (29) To that end, the Supreme Court has held that even when a federal agency has identified steps it could take to mitigate the environmental harms resulting from a project, the agency is not obligated to actually implement those mitigation efforts. (30)

      Another important component of NEPA is its limited applicability to a state's actions. Though the NEPA review process is typically reserved for federal agencies, the same environmental review is required when the federal government funds, or even partially funds, a state action. (31) In these situations, either the federal government or a cooperating state agency can prepare the EIS so long as the process meets NEPA's requirements. (32) Regardless of which agency prepares the EIS, the end goal is the same: assurance that the government has adequately considered the environmental effects of a proposed action and is making an informed decision. (33)

   2. Breach of NEPA and the APA

      After Congress passed NEPA, scholars and courts were initially uncertain about the proper means of alleging a breach of NEPA's requirements. (34) But today, courts recognize NEPA to be a wholly procedural statute, thus mandating judicial review under the Administrative Procedure Act (APA). (35) A single circuit court has held that citizens can sue the government for a breach of NEPA by a different means. Part II explores this minority approach.

      Citizens can allege a few different types of violations when filing a NEPA claim against the government under the APA. Litigants can contend that an agency decision (in the form of a final EIS or ROD) was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (36) For example, if the government failed to adequately explain in an ROD why it chose one course of action over another reasonable alternative, a litigant could contend this failure was arbitrary and capricious. (3)'...