Category: NEPA

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Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility

The Ninth Circuit has rejected a claim, under the National Environmental Policy Act, that the Navy did not adequately consider the environmental consequences of a potential terrorist threat to the redevelopment of a military complex near downtown San Diego.  The opinion upheld the Navy’s Environmental Assessment for the complex, which concluded that the project would … Continue Reading

Court Dismisses NEPA Claims in Transit Project Challenge

The Ninth Circuit has dismissed a NEPA challenge to the approval of the Honolulu Rail Transit Project, rejecting claims that agencies unreasonably restricted the Project’s purpose and need and failed to consider all reasonable alternatives. v. FTA, No. 13-15277 (9th Cir., 2014) Nearly a decade ago, the City of Honolulu, along with the Federal … Continue Reading

EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction

On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report that is widely seen as a prelude to upcoming regulations that would significantly expand federal permitting jurisdiction under the Clean Water Act. See our update for more information about the draft report, which is titled “Connectivity of Streams and … Continue Reading

Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation

Many CEQA and NEPA analyses of greenhouse gas impacts assume implementation of the Low Carbon Fuel Standard adopted by the California Air Resources Board. In a boost to the credibility of these analyses, the Ninth Circuit has dissolved a pending injunction and rejected multiple challenges to the Low Carbon Fuel Standard. Rocky Mountain Farmers Union … Continue Reading

All About Drakes Bay and Oysters, Little Oysters.

In a case the court described as pitting “an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists,” the Ninth Circuit has upheld denial of a preliminary injunction against the Interior Secretary’s decision not to extend a permit for commercial oyster farming at Point Reyes National Seashore.  Drakes Bay Oyster Company v. Jewell, No. 13-15222 (Ninth … Continue Reading

Ninth Circuit Clarifies ESA’s “Cumulative Effects” Requirement

The Ninth Circuit Court of Appeals has confirmed two important points under the federal Endangered Species Act:  A “cumulative effect” under the ESA is different from a “cumulative impact” under NEPA No “cumulative effects” analysis is required in informal ESA section 7 consultations. Conservation Congress v. U.S. Forest Service, No. 12-16452 (9th Cir. 2013).  The … Continue Reading

Fracking in California? Not so fast, says federal court

Friends and foes of fracking in California have, for the most part, fought their battles in the policy and legislative arenas.  But the federal district court in San Jose recently chimed in, striking down four oil and gas leases issued by the Bureau of Land Management for 2,700 acres of federal lands overlying the Monterey … Continue Reading

Supreme Court Agrees To Review Ninth Circuit NEPA Decision

 On March 18, the U.S. Supreme Court decided to hear the case of United States Forest Service v. Pacific Rivers Council, in which the Ninth Circuit overturned an Environmental Impact Statement for a 2004 amendment to a programmatic framework governing a series of logging plans for national forest lands in the Sierra Nevada Mountains. The … Continue Reading

Federal Agency May Adopt Project that Combines Elements from Several Alternatives Studied in an Environmental Impact Statement

In approving a project to repair a flood-damaged road in a national forest in Nevada, the U.S. Forest Service adopted a “Selected Alternative” that combined elements from three different alternatives that were evaluated in the Environmental Impact Statement for the project.  In upholding the Forest Service’s approval, the Ninth Circuit rejected the project opponents’ claims … Continue Reading

CEQ Issues Handbooks on Coordinating NEPA Review with Review Under CEQA and Review Under the Historic Preservation Act

On March 5, 2013, the Council on Environmental Quality released a handbook intended to help agencies and practitioners coordinate environmental reviews under the National Environmental Policy Act with overlapping review requirements under the California Environmental Quality Act.  It also released a separate handbook on coordination of review under NEPA and the National Historic Preservation Act. Neither handbook makes new … Continue Reading

New Forest Service Roadless Rule Upheld

The Ninth Circuit Court of Appeals has rejected environmentalists’ challenges to a new “roadless rule” governing federal lands in Idaho.  In Jayne v. Sherman, the court found the U.S. Forest Service followed an inclusive, thorough, and transparent process and that its approval of the new rule did not violate the Endangered Species Act or NEPA. … Continue Reading

Ninth Circuit Emphasizes Deference to Federal Agencies under NEPA

In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies.  Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v. Weldon (9th Cir. … Continue Reading

Ninth Circuit Upholds Fish & Wildlife Service Regulations Against Environmentalists’ Challenge

The Chukchi Sea off the North Slope of Alaska is a promising place for oil and gas development.  But it’s also home to polar bears and walruses.  This clash of interests led to a lawsuit by two environmental groups against the Fish & Wildlife Service, decided by the Ninth Circuit in the Service’s – and … Continue Reading

Ninth Circuit Upholds Analysis of Narrow Range of Alternatives in EIS

An alternatives analysis under NEPA may be valid even though only two very similar alternatives to the project are considered.  In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. United States Forest Service, the Ninth Circuit upheld an Environmental Impact Statement for an experimental forest thinning project in Oregon.  The court rejected the claim that … Continue Reading

To Consult or Not To Consult – That Is the Question for the Ninth Circuit

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.  In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in … Continue Reading