P R O B A T E   &   P R O P E R T Y
Nov/Dec 2004
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Environmental Law Update

Environmental Law Update Editor: Rafe Petersen, Holland & Knight LLP, 2099 Pennsylvania Ave., N.W., Suite 100, Washington, DC 20006–6801, rafe.petersen@hklaw.com.

Environmental Law Update provides information on developments in environmental law as it applies to property, probate, and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

Supreme Court Issues Two Significant NEPA Decisions

In June 2004, the U.S. Supreme Court issued two decisions interpreting the application of the National Environmental Policy Act (NEPA) to federal agencies. Perhaps the most pervasive of all the federal environmental laws, NEPA’s “look before you leap” requirements have been broadly interpreted to cover just about every instance when federal power is implicated. Under these two decisions, the Court has restricted, however, the requirement that agencies prepare or update environmental evaluations of their actions under certain circumstances.

Overview of NEPA

The purpose of NEPA is to ensure that federal agencies avoid, to the greatest extent possible, any significant effects to the environment by adequately considering the effects of their actions before going forward. NEPA § 102 requires each federal agency to include in every “major Federal action significantly affecting the quality of the human environment” a detailed statement on the environmental impact of the proposed action. Such statement must include, at a minimum, a description of alternatives to the proposed action, any adverse environmental effects that cannot be avoided should the proposal be implemented, and any irreversible and irretrievable commitment of resources that would be involved in the proposed action should it be implemented. This statement may be in the form of an Environmental Impact Statement (EIS). Council of Environmental Quality (CEQ) regulations, however, allow an agency to prepare a more limited Environmental Assessment (EA) if the impacts are insignificant. An agency that decides, in accordance with an EA, that no EIS is required must issue a “finding of no significant impact” (FONSI).

Depending on the size and scope of a project, the NEPA process can be a long and protracted component of the planning phase, taking anywhere from eight to 24 months to complete, and in some instances several years longer. Significantly, however, NEPA does not dictate a specific outcome. Rather, it is a “process-forcing” mechanism designed to ensure that environmental considerations are factored into the decision-making process.

Department of Transportation v. Public Citizen

On June 7, the Court issued Department of Transportation v. Public Citizen, 124 S. Ct. 2204 (2004), a unanimous decision authored by Justice Thomas that considered the definition of “effect” for purposes of EIS evaluation. In 1982, Congress issued a moratorium barring new grants of operating authority to motor carriers domiciled in Mexico, authorizing the president to lift the suspension, which he did in 2001. The Federal Motor Carrier Safety Administration (FMCSA) subsequently issued two proposed rules concerning safety regulation of Mexican motor carriers. FMCSA issued a programmatic EA for the proposed regulations with a  FONSI.

The relevant question before the Court was whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by Mexican trucks, qualified as an “effect” of FMCSA’s issuance of the regulations that the agency was required to consider in its EA.

The Court held that even if the issuance of the regulations qualified as a “but for” cause of the increased Mexican motor carrier traffic in the United States, this alone was insufficient to require the agency to consider that particular environmental effect (increased emissions) under NEPA. The Court reasoned that the FMCSA has no discretion to prevent the entry of such trucks and is therefore not required to consider any environmental effects from the Mexican trucks. In holding that this effect was outside the scope of NEPA, the Court reasoned that “where an agency has no ability to prevent a certain effect because of its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” 124 S. Ct. at 2217.

The Court ultimately concluded that a federal agency need not consider the effect of an action if control of that action is outside of its jurisdiction. This is significant in terms of the scope of NEPA documents, as it reduces the scope of effects that agencies would be forced to consider under NEPA.

Norton v. Southern Utah Wilderness Alliance

On June 14, the Court issued Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373 (2004), a unanimous decision authored by Justice Scalia evaluating the scope of an “action” requiring supplementary environmental analysis. In Southern Utah, the Bureau of Land Management (BLM) had initially approved a land use plan for federal land in Utah that allowed for increased use by off-road vehicles (ORV). The Southern Utah Wilderness Alliance challenged this action, alleging that BLM had failed to take a “hard look” at whether, under NEPA, it should undertake supplemental environmental analyses of the land use plan to consider the impact of increased ORV use. Underlying this challenge was the Alliance’s concern that ORV use jeopardized the chance that this land could potentially be considered for protection under the Wilderness Act of 1964—which provides that designated wilderness areas, subject to certain exceptions, “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures. 16 U.S.C. § 1133(c).

Although, generally speaking, an initial EIS completes an agency’s NEPA obligations, in certain circumstances that EIS must be supplemented. Under NEPA, an EIS must be supplemented when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. But, as the Court held in Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), supplementation is necessary only if there remains major federal action to occur. In Southern Utah, the Court held that although approval of a land use plan is a major federal action, the action is completed when the plan is approved. Hence, there is no ongoing major federal action that could require supplementation despite the fact that BLM had an ongoing management responsibility under the plan. The Court concluded that additional NEPA analysis would only be required if the plan is amended or revised.

Although the Court appears to have clarified that an agency does not have an ongoing obligation to constantly revise its EIS every time a new circumstance arises, it did not define what, if any, other types of federal approval will similarly be considered a complete federal action. The lower courts will be left to draw analogies between the land use plan at issue in this case and other examples that arise in their jurisdictions.

Conclusion

Under these recent Supreme Court decisions, the scope of the environmental effects that an agency is required to consider under NEPA has been limited. Both cases draw parameters around the NEPA process, restricting its application to federal agencies and the circumstances under which the agencies are required to conduct environmental analyses.

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