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

• Author: Lawrence R. Liebesman/Rafe Petersen
• Pages: 97-100

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).