DEPARTMENT OF PUBLIC POLICY

POL 661: Environmental Law

Lecture 5: NEPA - Remedies Introduction
Now that we have some understanding of NEPA, it is time to take a closer look at the remedies portion of the statute. Let us think about this term, remedies, for a moment. As the text states, what if a federal agency fails to follow the procedures required under NEPA? What precisely are these procedures that need to be followed? Where does the evidence come from to prove a breach of NEPA requirements, and what is the standard of proof applied by the courts? What is the normal judicial remedy offered in such situations? What if the proposed remedy would substantially interfere with an important government policy (like national security)? Will the Court change its proposed remedy? These are all important questions to consider in order to fully understanding the implications NEPA has for the protection of the environment. (Remember to always consider in the policy implications outlined at the beginning of this course.) While many of these statutes are aimed at protecting the environment, the application of the statute may interfere with other important functions of the government (like national security as stated above). Using the concept that national security provides an exception to environmental regulations, one important question that often recurs in the environmental context is whether it is allowable to relax environmental protections for the sake of dealing with crisis issues in our society, for example to ensure domestic energy supply or to mitigate the impacts of an economic crisis; if the price of gasoline were to rise in the United States to a point where it was impacting the economic wellbeing of people living today, then would it be advisable to exempt environmental standards contained in statutes to help alleviate the economic strain? How we answer this question brings us back into our relationship between the environment, society, and economic activity. Those of the ecologist camp might argue making such exceptions today only harms the natural system and can potentially cause an equilibrium shift in the system that irretrievably harms the capacity for human wellbeing for future generations. Those of the economic camp might argue the ability for environmental standards to be relaxed in an economically disadvantageous environment is critical if a society is to grow and prosper. The degree to which we might agree with one argument over another helps us understand the role of environmental laws in our society. By viewing how remedies for violations of NEPA are handled, we get a sense of this argument in the context of a

Page 2 of 7 planning environmental statute; essentially, we observe what it really means under NEPA to consider environmental impacts when those impacts might also influence other political priorities in essence whether NEPA has staying power under difficult circumstances.

The Basis for Judicial Review The Assessment Process

Recall that NEPA requires government entities to engage in a review of environmental impacts on proposed government activities. The first part of this review process is to determine if the activity will likely cause environmental impacts (and also if the government has any discretion to not engage in the activity or alter the activity; where the government has no discretion1, NEPA does not apply even where environmental impacts will be shown). The second part of the review occurs where there is a potential for environmental impacts from the proposed activity (and government has discretion to alter or suspend the activity). If there is a likelihood of environmental impact, then government must: Assess the potential of those impacts in terms of degree (small, significant, etc.) by conducting a cursory environmental review (EA). Where the potential for impact is substantial, then a full environmental review (EIS) must be completed.

This process summarized above follows the following decision tree questionnaire format, copied from the previous module:

For example, if the government is engaging in a nondiscretionary duty identified by Congress through a statutory requirement.

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Government Decision Not Supported by the Record

From a judicial review standpoint, the parts of the decision-making process focused on by courts include the major questions at each stage of the NEPA process identified above (the red, light blue, and the darker blue questions). Courts are generally available to review whether the governments decision at each state of this decision tree is supported by available evidence. The available evidence, in turn, is based on the administrative record, which includes the governments own actions (and studies conducted) in order to answer each question, and also any materials submitted by the public (at public hearings, notice and comment periods, etc.) that would give evidence to help support a decision on environmental impacts. For example, if there were clear evidence of environmental harm available to the government (and thus in the administrative record)2 at the very beginning of the process, but the government determined there was no evidence to support conducting an EA (instead noting a FONSI at this early stage), then there would be evidence contained in the record that clearly contradicted the government finding of no significant impact (FONSI). Under such circumstances a court could determine the governments decision is unsupported by the record. The same is true if the government conducts an EA and finds there is not sufficient likelihood of environmental harm to conduct an EIS, but that finding is contradictory to the information contained in the record on environmental harm.3 If a court finds the government action is unsupported by the record, then it can invalidate the decision and require the government to conduct a proper environmental review in-line with NEPA requirements. Note NEPA does not allow the court to force the government to make a particular decision, but rather to comply with the provisions of NEPA based on the information contained in the record.4
2

Remember, the evidence must be part of the administrative proceedings held by government when conducting the review. This can come from the governments own experts or from independent expert reports and information made available to the government through a notice and comment or community hearing as part of the environmental review process.
3

A clear example of this would be evidence in the record that shows the site for a government development was critical habitat for an endangered species.
4

Notice how powerful the administrative record is when challenging the governments decision-making under NEPA. One should be able to see the relevance of getting on the record if they believe important information about the area and its environmental assets is not being included in the government review of environmental impacts. This is why many organizations and citizen groups make it a priority to get their information on the record during a NEPA review process; the record becomes the entire universe of information available to a court when reviewing government decisions related to its consideration of environmental impacts on a given project. In a perfect world the government would simply ensure it is conducting a sufficient analysis of environmental impacts prior to making such decisions. However, it is likely that such information is not always obtained directly by government efforts and therefore public participation becomes an important part of the NEPA process.

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Failure to Consider Alternatives

When an EIS is required (the full-blown environmental analysis), then one must consider alternatives including the no action (do nothing) alternative. This alternative analysis can form the basis of judicial review when government fails to adequately consider all reasonable alternatives. The way a court determines if government fails to consider alternatives is, again, based on the administrative record. So, for example, if the record identifies that a project can be altered by changing its footprint (where it is located) in such a way that protects identified critical habitat, but the government does not consider this alternative, then there is a basis for a court to hold the government has failed to consider this reasonable alternative and therefore has not complied with NEPA.5 Beyond reasonable alternatives, government must also consider the no action alternative, which means government must consider not engaging in the project as one way of mitigating environmental impacts. The no action alternative is generally considered reasonable where the project goals can be achieved in another way and the environmental impacts of the current proposal show a substantial harm on the environment. If the project were building a dam for power generation (the goal), but the dam site is shown to harm an endangered species, then the no action alternative might be reasonable where the harm to the endangered species cannot be mitigated through other alternatives but the goal of the project (power generation) can be achieved in other ways (different projects elsewhere). In practice, the no action alternative is usually established as the baseline from which other alternatives are measured under the full alternatives analysis.

The Standard Remedy

The standard remedy for failing to comply with the provisions of NEPA is an injunction. An injunction is an equitable remedy (this means the court issues an order telling a party to do something, rather than, for instance, issuing a judgment for an amount of money). In practice an injunction would be issued where a court determines the agency has: Failed to support their decision-making process (EA, EIS, FONSI) by the evidence contained in the record; and/or Failed to adequately engage in an alternatives analysis as required under NEPA.

Courts have held that government entities need only consider reasonable alternatives because government would not employ unreasonable alternatives even if they were considered. In the context of NEPA alternatives analysis, reasonable means something that is feasible, capable of bringing about the goals of the proposed project. Thus, if government could move a proposed building a few hundred feet to protect critical habitat and still meet the intended goals of the project even after the move, then this alternative would be considered a reasonable alternative.

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That being said, not all injunctions are the same. They can be enacted with varying degrees of force. For example, a court could issue a complete injunction on operations. This halts the entire activity, and generally remains in-force until the government agency has fully complied with the requirements of NEPA. An alternative to this would be a preliminary injunction. In these instances, a court may order an initial injunction of activities because there is some initial evidence that suggests the government may not have complied with NEPA. A later hearing is scheduled where the parties are able to present full evidence on whether or not a NEPA violation has occurred. After this later hearing, a judge will issue a decision either instituting a complete injunction, or lifting the preliminary injunction and allowing work to continue.6 Beyond these standard injunctions, there are many variations. As noted in the text, sometimes the court will weigh the seriousness of the project at issue against the environmental harm committed by failing to fully comply with NEPA. Recent examples generally revolve around national security. There have been numerous instances where the government has failed to follow NEPA with respect to certain activities it deems involves national security. One such instance is the Naval use of new forms of sonar, and other underwater technologies. It is argued these technologies are capable harming aquatic marine life (including marine mammals) because they are sensitive to the sounds produced. The Navy claims the right to conduct tests on these technologies for national security purposes, and further argues it does not have the time to fully comply with NEPA in many cases. Courts have been split on the issue of NEPA compliance (since Congress explicitly stated NEPA should be followed), as there are competing concerns, since national security maintains a strong level of deference in our legal and political system. The text notes two case examples, Concerned About Trident v. Rumsfeld and Wisconsin v. Weinberger, each coming to a different conclusion. The rationale behind cases coming to different conclusions is founded on the principle surrounding injunctions. An injunction is an equitable remedy. As such, courts have the discretion to balance the interests involved. Sometimes, national security is found to take precedence over environmental concerns, particularly where national security is seen as a nondiscretionary action by the Department of Defense (recall NEPA does not apply to nondiscretionary government actions). Think about this result from a policy perspective. The concept of equitable remedies sounds like a cost-benefit approach. Indeed, it seems the environment is being balanced against other interests, and it may be the case the environment is found to have less value in some instances. This is even the case where the federal law (in this case NEPA) has been passed to explicitly protect the environment! Does this seem equitable as Stone might define the term? Also, IF the environment is capable of being weighed against other interests, then what is the likelihood one will support environmental protection in tough economic times? Consider what is happening today. Due to rising gas prices, both
6

Consider the arguments laid against NEPA in the previous lecture on economic grounds and think about the impact an injunction can have on a project as delays in moving forward can translate into substantial economic harm.

Page 6 of 7 parties seem to be favoring the opening of offshore oil exploration, something that has not been done for decades in most parts of the country. (Indeed, the democrats have been strongly opposed to this policy until recently). Why would we even consider offshore oil exploration, when our history shows such exploration causes significant environmental harm? Moreover, what about climate change? If we drill offshore (remember, it will take years to actually being extracting the oil even if we started developing offshore sites today), we are committing to the use of hydrocarbons for decades to come (and an increasing use at that). We were just told increasing greenhouse gas emissions (and thus concentrations in the atmosphere) is the WRONG thing to do! Why would we be willing to sacrifice our environmental security for a short-term economic security? One answer to this question may lie in the way human being behave generally. History has taught us that we are more willing to care about environmental concerns when our basic needs are being met (food, shelter, clothing). When we are being pressed to maintain a basic standard of living, issues like the environment tend to take a back seat to other priorities. Thus, in economic language, we tend to discount the future harm of our actions, and focus more on the short-term results. So, when pressed against the wall, we look to immediate solutions, not necessarily long-term solutions.7 The remainder of the chapter discusses proposed amendments to NEPA. The framing question is whether or not NEPA really works. If it does not, then we need an alternative. Many alternatives have been proposed, to include a constitutional amendment for the environment, and a uniform environmental statute. I would suggest, for many of the policy reasons state above, neither of these are likely to occur in the immediate future. It was politically difficult to get NEPA passed and would be even harder today. Moreover, some might argue there is no need for public controls, especially more laws! Rather, let the marketplace determine the evolution of environmental protection (consider Coase Theorem here). As an example, with oil costing more, technological alternatives are being developed (hybrid cars, wind and solar power, etc.) that consumers are demanding. Without significant government forcing,8 industries are moving in this direction to meet this demand.

Conclusion
So, it appears from our readings for the last two modules that NEPA is not a perfect statute. It is mostly procedural in nature, and does not force a particular result. If a
7

This may help us understand why environmental concerns are not the most pressing issues, generally, in many developing nations. Indeed, there is a historical argument that we in the U.S. did not become environmentally minded until we reached a certain level of affluence after World War II.
8

Government does set some regulatory requirements including Corporate Average Fuel Economy (CAFE) standards. In addition, government engages in non-regulatory incentive programs to help boost fuel-efficient vehicle demand, such as tax credits for purchasers of certain hybrid and alternative vehicles that obtain high fuel economy.

Page 7 of 7 government agency complies with the procedures, they are allowed to continue with the project, no matter the extent of environmental harm caused. This leaves the impression NEPA does little to actually protect the environment. However, in reality, NEPA has been shown to be a significant factor in ensuring environmental protection. Maybe the easiest way to think about this is to suggest time is money. NEPA can cause significant delays to projects. It also makes the environmental harms discovered public. This transparent process can force significant changes to proposed projects that favor environmental protection. When NEPA is violated, the main remedy is an injunction. While there are exceptions to a full injunction, and while the environment may be weighed against other concerns, NEPA still remains a strong public policy statement that the environment should be considered BEFORE we engage in major federal actions that have the potential to significantly affect the environment. END OF SECTION.