Category: NEPA

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Federal Appeals Court Rejects Challenges to Newhall Ranch EIS and Section 404 Permit

In the latest decision in the long-running legal saga over the proposed Newhall Ranch development in Los Angeles County, the U.S. Court of Appeals for the Ninth Circuit upheld the Army Corps of Engineers’ EIS and Section 404 permit, giving substantial deference to the Corps’ decisionmaking. Friends of the Santa Clara River v. U.S. Army … Continue Reading

Significant Changes Proposed to NEPA Regulations

The Council on Environmental Quality (CEQ) has issued a notice of proposed rulemaking regarding potential changes to the CEQ regulations under the National Environmental Policy Act. The proposed revisions to the CEQ regulations could potentially have far-reaching effects because NEPA requirements are largely defined in the regulations themselves, which have remained essentially unchanged for nearly … Continue Reading

Forest Service Properly Analyzed Potential Impacts of Forest Restoration Project on Pine Marten and Fisher Populations

The 9th Circuit Court of Appeals held that the U.S. Forest Service could validly rely on proxy approaches in determining whether a forest restoration project would adversely impact pine marten and fisher populations in the project area. Alliance for Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017). The Alliance for the Wild Rockies … Continue Reading

NEPA Violations Did Not Undermine Validity of EIS for Nuclear Missile Maintenance Facility

The Ninth Circuit rejected challenges to the Navy’s plans to construct a new nuclear missile maintenance facility. Although the court found that the Navy had violated NEPA by failing to adequately disclose information in the environmental impact statement, it held that these violations were harmless because they would not have improved public participation or changed … Continue Reading

U.S. Fish & Wildlife Service Adopts 30-Year Eagle Take Rule

As we previously reported, in August 2015, a federal court nullified the U.S. Fish and Wildlife Service’s rule increasing the length of programmatic permits to “take” bald and golden eagles to 30 years. The court held that the Service was required to prepare an Environmental Impact Statement or Environmental Assessment before adopting the rule. The Service … Continue Reading

Indian Gaming Act and NEPA Irreconcilable, Ninth Circuit Rules

The Ninth Circuit has held that the National Indian Gaming Commission’s approval of a tribal gaming ordinance does not require review under the National Environmental Policy Act because there is an irreconcilable conflict between NEPA and the Indian Gaming Regulatory Act.  Jamul Action Committee v. Chaudhuri, No. 15-16021 (9th Cir., June 9, 2016). The Indian … Continue Reading

Ninth Circuit Upholds BLM’s Approval of Renewable Wind Energy Project

On the heels of a decision nullifying the Bureau of Land Management’s approval of a wind energy project under the National  Environmental Policy Act (reported on here),  the Ninth Circuit rejected a challenge to BLM approval of another wind turbine project, finding it consistent with NEPA, the Migratory Bird Treaty Act and the Bald and … Continue Reading

Court of Appeals Nullifies Environmental Review of Wind Energy Project

Observing that “[r]enewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts,” a Ninth Circuit panel has invalidated the environmental review of a major wind turbine project by the Bureau of Land Management. The court held that the BLM did not adequately consider the project’s impacts on … Continue Reading

Fish and Wildlife Service Reissues 30-Year Eagle Take Rule

As we previously reported, in August 2015, a U.S. District Court in San Francisco nullified the U.S. Fish and Wildlife Service’s new rule increasing the length of programmatic permits to “take” bald and golden eagles from 5 years to 30 years.  Shearwater v. Ashe, No.14-CV-02830-LHK (N. Dist. Ca, Aug. 11, 2015). In striking the rule, the … Continue Reading

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