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
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…
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 the Navy’s decisionmaking. Ground Zero Center for Non-Violent Action v. U.S. Department of the Navy (9th Cir. No. 14-35086, June 27, 2017).
The plaintiffs challenged the Navy’s plans to construct a new wharf for maintenance of nuclear missiles at Naval Base Kitsap in Bangor, Washington, alleging that the Navy had violated NEPA. The Navy had redacted three of the appendices to the EIS in their entirety on the ground that they contained sensitive information relating to nuclear material. During the litigation, however, in response to public records requests or as part of the administrative record, the Navy released significant information that had not been previously disclosed in the EIS. This included portions of the EIS appendices that had been redacted when the EIS was published. The new documents indicated that the Department of Defense Explosives Safety Board had rejected the proposed project because of concerns regarding the risk of an explosion. However, the Navy had received an exemption from the Secretary of the Navy allowing it to proceed with construction without conducting additional safety studies required by the Safety Board.
The plaintiffs argued that the Navy had violated NEPA by (1) redacting the portions of the EIS appendices that it later released publicly, (2) not adequately disclosing the project’s risks and the Safety Board’s disapproval, and (3) not evaluating reasonable alternatives in the EIS. The district court granted summary judgment for the Navy on the plaintiffs’ NEPA claims. The district court also sealed portions of the record that contained classified and controlled information that the Navy had inadvertently disclosed, and ordered the plaintiffs not to discuss or reference any of those documents in a court hearing and not to further disseminate those documents. The plaintiffs appealed to the Ninth Circuit.
First, the plaintiffs argued that the Navy violated NEPA by not disclosing the appendices when it published the EIS. NEPA requires that an agency disclose information, including appendices to an EIS, “to the fullest extent possible.” The Freedom of Information Act (which applies to NEPA), however, contains an exception for disclosing sensitive nuclear information if it “could reasonably be expected to have an adverse effect” on public safety or security. The Ninth Circuit agreed with the plaintiffs that the Navy violated NEPA by redacting the appendices in their entirety. The court explained that the Navy’s subsequent disclosure of portions of the appendices during the litigation indicated that material should have been disclosed in the EIS. The court concluded, however, that the Navy’s NEPA violation was harmless because the plaintiffs did not demonstrate that information in the appendices would have made a difference in the Navy’s decisionmaking or public participation.
Continue Reading NEPA Violations Did Not Undermine Validity of EIS for Nuclear Missile Maintenance Facility
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 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).
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…
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 not create the potential for a significant impact from a terrorist attack. San Diego Navy Broadway Complex Coalition v. United States Department of Defense, No. 12-57234 (9th Cir. March 30, 2016).
The Navy first approved the redevelopment of the complex in 1991. The project included both military functions and private commercial uses to generate revenue. However, adverse real estate conditions in San Diego delayed the project until the mid-2000s. In 2006, the Navy prepared an EA for the project to supplement its prior NEPA analysis from the early 1990s, and it executed a lease with a private development partner. But a citizens group filed a NEPA lawsuit, and the district court ruled that the Navy had failed to provide adequate public notice for the EA.
In response, the Navy prepared a new EA and reapproved the project in 2009. The new EA included a discussion of a potential terrorist attack, due to the Ninth Circuit’s ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which had held that a categorical dismissal of the potential impacts from a terrorist attack at an installation built to store spent nuclear fuel rods was unreasonable under NEPA. The Navy’s new EA concluded that a terrorist attack at the complex in San Diego was too speculative and remote to require NEPA analysis, since there was no known specific threat targeting the complex or its location. The EA also explained that anti-terrorism building specifications would be followed to reduce the risks posed by a potential terrorist attack. The EA thus concluded that the project would not place military or civilian personnel in jeopardy and would not result in a significant impact under NEPA.
Continue Reading Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility
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. HonoluluTraffic.com v. FTA, No. 13-15277 (9th Cir., 2014)
Nearly a decade ago, the City of Honolulu, along with the …
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 Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.”…
Continue Reading EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction
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 v. Corey, No. 12-15131 (9th Cir., Sept. 18, 2013).
Continue Reading Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation