The Interface Between the ESA, the National Environmental Policy Act, and the Freedom of Information Act

AuthorLawrence R. Liebesman/Rafe Petersen
Page 97
Chapter XI
The Interface Between the ESA, the
National Environmental Policy Act, and
the Freedom of Information Act
A. NEPA and the ESA
e National Environmental Protection Act
(NEPA) sets forth a national policy “to create and
maintain conditions under which man and nature
can exist in productive harmony, and fulll the
social, economic, and other requirements of pres-
ent and future generations of Americans.”1 NEPA
establishes goals to protect the nation’s resources
and requires all federal a gencies to interpret and
administer their indiv idual policies, regulations,
and laws in accordance with NEPA’s goals to “the
fullest extent possible.”
Section 102(2)(c) of NEPA requires prepara-
tion of a detailed environmental impact statement
(EIS) for every “major Federa l action signicantly
aecting the quality of the human environment.”2
e president’s Council on Environmental Qual-
ity (CEQ ) interprets the EIS requirement and
other provisions of NEPA through detailed regu-
lations and other policy guidance.3 Accordingly,
each federal agency is required to prepare det ailed
implementation procedures to carry out the CEQ
regulations. While NEPA establishes substantive
policy goals, the U.S. Supreme Court has stated
that NEPA’s mandate is essentially procedural and
is intended primarily to ensure a fu lly informed
and well-considered decision.4
e CEQ regulations emphasize the fu ll NEPA
process in every phase of agency decisionmaking
from early plan ning through nal a gency action
1. 42 U.S.C. §4331(a), ELR S. NEPA §101(a).
2. 42 U.S.C. §4332(2)(C), ELR S. NEPA §102(2)(C).
3. 40 C.F.R. §§1500 et seq.
4. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, 435 U.S. 519, 8 ELR 20288 (1978); Stryker’s Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 10 ELR
20079 (1980); Andrus v. Sierra Club, 442 U.S. 347, 9 ELR
20390 (1979); Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, 462 U.S. 87, 13 ELR 20544 (1983).
and subsequent follow-up. Specically, t hese reg-
ulations underscore the importance of assessing
planning proce ss, evaluating important alterna-
tives, preparing analytic and accurate EISs, facili-
tating public involvement, preparing clear records
of agency actions, and encouraging the use of miti-
gation and monitoring techniques.5
Prior to 1983, the FWS routinely prepared EISs
for all regulations issued under §4 of the ESA c ov-
ering listings a nd critical habitat. However, in that
year, the CEQ found that NEPA did not apply to
these listing decisions based on the theory t hat the
FWS was exempt as a matter of law or that such
actions could be considered “categorically exempt”
from NEPA.6 In 1983, the FWS issued a notice in
the Federal Register stating that a NEPA analysis
was not required for §4 regulations based on two
grounds: (1) ESA listing decisions are limited to
considering only biological data; socioeconomic
data were not a factor; and (2) the Sixth Circuit
decision in Pacic Legal Foundation (PLF) v.
Andrus7 found, a s a matter of law, that an EIS was
not required for listings.8
e issue of NEPA applicabil ity has been
addressed by only a few courts since the PLF case,
in both the listing a nd critical habitat contexts. In
Douglas County v. Babbitt,9 the court held that the
FWS did not need to comply with NEPA for the
designation of certain federal lands as critical habi-
tat for the northern spotted owl. Citing the PLF
case, the court stated t hat:
5. 40 C.F.R. pt. 1501 (1992); see also Larry Liebesman, e Council
on Environmental Quality’s Regulations to Implement the National
Environmental Policy Act—Will ey Further NEPA’s Substantive
Mandate?,” 10 ELR 50039 (Nov. 1980).
6. 48 Fed. Reg. 49244 (Oct. 25, 1983).
7. 657 F.2d 829, 11 ELR 20871 (6th Cir. 1981).
8. 48 Fed. Reg. 49244 (Oct. 25, 1983).
9. 48 F.3d 1495, 25 ELR 20631 (9th Cir. 1995).

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