Weakening NEPA: How the Bush Administration Uses the Judicial System to Weaken Environmental Protections

William Snape III and John M. Carter II

William J. (Bill) Snape III, is Vice President and Chief Counsel at Defenders of Wildlife, a biodiversity advocacy group with approximately one million members and supporters, dedicated to protecting plants and animals in their native ecosystems. In this capacity, he manages all domestic and international legal programs, provides legal counsel on all program policy, and directs the organization's litigation before various courts and tribunals. Snape is the author of numerous articles on natural resources policy and is the editor of BIODIVERSITY AND THE LAW (Island Press 1996). Snape has taught at several law schools, including George Washington University, Georgetown University, and the University of Pennsylvania. He is formerly an adjunct professor at the University of Baltimore School of law, and still serves as an advisor for the school's Environmental Law Journal. Snape is a Phi Beta Kappa graduate of the University of California, Los Angeles, with a B.A. in history, magna cum laude, and he received his J.D. from George Washington University, where he was president of the Environmental Law Society. He serves on the board for the Institute for Journalism and Natural Resources, WildCanada.Net, and the U.S. Endangered Species Coalition, where he is President and Chairman. He is married and has two children.

John M. Carter II is the Judicial Accountability Fellow at Defenders of Wildlife. Carter graduated from the University of the South with a B.A. in philosophy. He attended law school at Washburn University in Topeka, Kansas, receiving his J.D. with honors in 1997. Following his admission to the Kansas bar, Carter commenced a solo practice devoted to promoting environmental and rural issues. After preventing the establishment of massive hog concentrated animal feeding operations in two Kansas counties, Carter wound up his Kansas practice to hike the Appalachian Trail and continue his legal education at Vermont Law School. He received his LL.M. degree in environmental law from Vermont Law School, summa cum laude.

[33 ELR 10682]

The Defenders of Wildlife Judicial Accountability Project—undertaken with the assistance of the Vermont Law School Clinic for Environmental Law and Policy—seeks to fill a data void on the environmental record of the current Bush Administration by analyzing all reported environmental cases in which the Administration has presented legal arguments regarding an existing environmental law, regulation, or policy before federal judges, magistrates, or administrative tribunals. By examining not only all judicial decisions pertaining to environmental issues, but also the legal briefs submitted to the judiciary, the aim has been to identify quantifiable trends on whether, or to what degree, President George W. Bush, Vice President Richard Cheney, and their political appointees are working to preserve, protect, and defend the U.S. Constitution and laws of the United States as sworn in their oaths of office.¹

The focus of this particular Article is the National Environmental Policy Act (NEPA) of 1970, the so-called grandparent or Magna Carta of environmental policy in our country.² More specifically, this Article details all the NEPA cases decided by federal tribunals between January 21, 2001, and January 21, 2003, examining how the Bush Administration has interpreted NEPA's legal requirements and whether the federal judiciary agreed with the Bush Administration's interpretations.

Signed by President Richard M. Nixon with significant bipartisan support, NEPA is remarkable for several reasons. First, its goals are ones with which no reasonable person should disagree:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.³

Second, NEPA applies only to federal governmental agencies, which it is believed should set the example for encouraging environmental responsibility. NEPA does not directly apply to state actions, corporate actions, or individual actions, but can apply indirectly if those entities seek federal approval or funding.

Finally, NEPA does not require substantive results per se; rather, the statute is noteworthy in that it requires the federal government to ask basic questions about proposed federal actions that will result in significant environmental impact, e.g., national forest timber sales, federal highway projects, oil and gas development on public land, and fishing permits, examine and develop alternatives to the proposed action, and provide honest answers. As the U.S. Supreme Court has said, "NEPA has twin aims…. It places upon agencies the obligation to consider every significant aspect of the environmental impact of a proposed action], and] it ensures that agencies will inform the public that they have indeed thoroughly considered environmental concerns in the decisionmaking process."⁴

In contrast to the goals and intent of NEPA, the Bush Administration appears to be avoiding or limiting NEPA environmental review in a manner that seems calculated to accelerate the Administration's policy objectives. Among these objectives are: expediting the exploitation of oil, gas, and minerals on federal public lands and our coasts; expediting road and highway planning, review, and construction; expediting logging, road-building, and other commercial uses of national parks, forests, and rangeland; ignoring environmental impacts of international trade and other commercial agreements; ignoring impacts by the military and the fishing industries in our oceans; and ignoring the impacts of increased development on wetlands and riparian areas.

One result of the Bush Administration's attempts to avoid and weaken NEPA has been a significant increase in federal [33 ELR 10683] court litigation challenging defective NEPA reviews, or decisions not to conduct NEPA reviews at all. A total of 219 NEPA cases were decided during the first two years of the current Bush Administration as opposed to 105 NEPA cases decided during the first two years of the Clinton Administration. This increase of more than 100% in NEPA litigation can likely be attributed to the Bush Administration's hostility toward NEPA, particularly in certain sectors.

How NEPA Works

NEPA requires federal agencies to take a "hard look" at the environmental consequences of their actions and to consider reasonable alternatives to proposed actions.⁵ NEPA "law" derives from three main sources: there is NEPA itself, which is a rather brief statute that does not contain many practical provisions for its implementation; there are the Council of Environmental Quality (CEQ) regulations, which contain both provisions for the implementation of NEPA and action-forcing mechanisms to ensure that agencies comply with NEPA; and then there are the NEPA regulations and guidelines promulgated by individual federal agencies. Irrespective of whatever NEPA regulations an agency may promulgate, the CEQ NEPA regulations apply to all federal agencies.⁶ Additionally, "CEQ's interpretation of NEPA is entitled to substantial deference"⁷; "NEPA's purpose is … to foster excellent action"⁸; and "NEPA contains 'action-forcing' provisions to make sure federal agencies act according to the letter and spirit of the Act."⁹

In some instances, the culmination of the NEPA process is the preparation of an environmental impact statement (EIS). The EIS is supposed to be a thorough and searching review of all of the reasonably foreseeable environmental impacts associated with a contemplated federal agency action. The main value of the EIS is that it requires the generation and review of all available relevant scientific evidence, requires the generation and consideration of alternatives, and makes such information available to the public. Environmental information used in making NEPA decisions "must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."¹⁰ NEPA mandates scientific and professional integrity,¹¹ and honesty with regard to incomplete or unavailable information.¹² "The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences…."¹³ In addition to evaluating the effects of the proposed action, NEPA also requires that an EIS develop, discuss, and evaluate alternatives to the proposed action. The alternatives section of NEPA is considered to be the heart of the EIS and requires rigorous exploration and objective evaluation of all reasonable alternatives including no action, the proposed action, and actions not within the jurisdiction of the lead agency.¹⁴

Where applicable regulations do not mandate the agency's preparation of an EIS for a certain type of action, the agency must still review the proposed action to determine whether the environmental impacts are significant enough to require the preparation of an EIS. This process begins with the environmental assessment (EA). Although not as detailed as an EIS, an EA must provide a thorough examination of the environmental impacts of a proposed action and provide and evaluate alternatives. The "hard look" doctrine applies to EAs as well as EIS.¹⁵

In certain instances, agencies may avoid the preparation of either an EA or an EIS in considering the environmental impacts of a proposed federal action. An agency may adopt a "categorical exclusion" where it has made a specific determination that the category of action at issue will have no appreciable effect individually or cumulatively on the environment.¹⁶ This determination must be formally adopted by an agency pursuant to notice-and-comment rulemaking, and must also provide for "extraordinary circumstances" in which a normally excluded action might have a significant impact and require further NEPA analysis. Once an agency has adopted a categorical exclusion, it may apply it to exclude certain agency actions from NEPA review. However, even if an action falls under a categorical exclusion, the agency must still provide a "reasoned explanation" for its decision that must be supported by the record. Thus, an agency cannot claim that an action was categorically excluded from NEPA review where it simply failed entirely to consider the environmental consequences of its actions.¹⁷

The Bush Administration and NEPA

The results of this study provide a startling contrast to the noble goals of NEPA. A total of 219 NEPA cases were decided during the first two years of the Bush Administration. Of the remaining 172 NEPA-decided cases argued by Bush Administration lawyers and not overturned on appeal, the Administration's arguments prevailed 95 times, or 55% of the time. In 94 cases, or 54% of the total, the Bush Administration presented arguments that could best be defined as NEPA-hostile in that they were contrary to established statutory, regulatory, or judicial interpretations of NEPA.

Remarkably, when the Bush Administration presented NEPA-hostile arguments, it lost 73 out of 94 cases, or 78% of the time. This very low success rate is fairly astonishing given the high degree of deference that the federal courts employ in reviewing federal agency decisions. However, when the Bush Administration presented NEPA-consistent arguments, it was successful in 75 out of 78 cases, or 96% of the time.¹⁸ By contrast, the Clinton Administration was sued [33 ELR 10684] under NEPA only half as often as the Bush Administration, winning 74% of its NEPA cases as opposed to 55% overall for the Bush Administration.

The NEPA legal challenges brought during the current Bush Administration can be placed into three categories. The first category includes those cases where the Bush Administration skipped NEPA analysis altogether or has taken positions in litigation that will allow it to avoid NEPA review in the future. The second category includes cases brought where the Bush Administration prepared an EA and unjustifiably failed to prepare a full EIS. The third category includes cases brought where the Bush Administration has prepared a NEPA document but failed to adequately address the environmental impacts of the federal action in question. In all three categories, the same bad actors frequently emerged: the U.S. Forest Service (Forest Service) lost 25 of its NEPA-hostile arguments, the U.S. Department of the Interior lost 16, and the U.S. Department of Transportation (DOT) lost 11. For a complete list of federal agency losses during the first two years of the Bush Administration, see Appendix B, Figure B-2.

Avoiding NEPA Altogether

During the past two years, the Bush Administration has been quite active, but largely ineffective, in arguing that various federal actions do not require any NEPA review whatsoever. What is problematic about many of the Bush Administration's attempts to avoid NEPA review is that the projects in question will have significant impacts on the environment. In these cases the Bush Administration has argued that despite plain and obvious environmental impacts, it does not have to conduct any NEPA review of its actions.

The Bush Administration has frequently raised judiciability arguments in its attempts to avoid NEPA review of various activities, including drilling on public lands and actions harmful to our oceans.

In Wyoming Outdoor Council v. U.S. Forest Service,¹⁹ the Bureau of Land Management (BLM) offered 49 parcels of land within the Powder River Basin in a competitive oil and gas lease sale for the exploration and development of coal bed methane (CBM). The BLM did not prepare any NEPA analysis addressing the impacts of the proposed leases, asserting that NEPA documents it had prepared in the past were adequate to support the proposal. The documents that the BLM attempted to rely on were a 17-year-old resource management plan that had never addressed the effects of CBM development or extraction, and a prior EIS that did not address the environmental issues raised in the current lease sale. When this approach was challenged by environmental groups, the BLM abandoned its reliance on the outdated documents and argued that precedent applicable within the U.S. Court of Appeals for the Tenth Circuit did not require it to prepare any NEPA analysis prior to the lease sale.²⁰ The Interior Board of Land Appeals forcefully disagreed with the BLM, citing the BLM's position on the timing of NEPA review for oil and gas leases as a radical departure from prior practice. Judge James Burski asserted: "The position advocated by BLM in its instant petition would, if merely followed to its logical conclusion, eviscerate NEPA as it relates to pre-leasing environmental analysis."²¹

In Natural Resources Defense Council, Inc. v. U.S. Department of the Navy,²² several environmental organizations sought to enjoin U.S. Navy low-frequency sonar testing and use until the Navy conducted NEPA analysis of the environmental impacts of sonar. Most of the sonar testing and use occurred within the U.S. exclusive economic zone (EEZ), a portion of the ocean extending 200 miles beyond the limits of territorial waters, over which the United States exercises its sovereignty. Despite strong evidence that sonar was driving marine mammals to beach themselves and die, the Bush Administration refused to assess the environmental impacts of its sonar program. Instead, the Administration argued that the presumption against extraterritoriality barred the application of NEPA to its sonar program because most of the sonar testing and use occurred outside the territorial waters of the United States, and that NEPA did not extend to the EEZ because the EEZ was not under the exclusive legislative control of the United States. The district court rejected these arguments, holding that NEPA applies to federal agency decisionmaking processes and finding that the planning for sonar use occurred entirely within the United States. Furthermore, the court found that NEPA applied to the EEZ of the United States, and held that the Navy had to prepare NEPA analyses for each individual sonar test it conducted.

In Center for Biological Diversity v. National Science Foundation,²³ the National Science Foundation was sued for failing to comply with NEPA prior to commencing acoustical research in the Gulf of California. The testing was conducted in an environmentally sensitive area and used an array of airguns to fire extremely high-energy acoustic bursts into the ocean at decibel levels far exceeding levels known to cause significant injury to marine mammals. The Bush Administration argued that the testing took place in Mexico's EEZ, and that to apply NEPA to Mexico's EEZ would impinge on Mexico's sovereignty and interfere with the enforcement of other statutes and regulations. The district court disagreed, noting that the ocean water in question was part of the "high seas" to which NEPA had been found to apply. The court found that requiring "an agency like the National Science Foundation to consider the environmental consequences of its decisions made in the United States affecting projects outside the United States but not within the territory of other countries will not affect the enforcement of other statutes and regulations," and enjoined the testing.²⁴

Some courts have gone as far as to call Bush Administration legal theories "mystical." Administrative review is particularly important because it provides the public with the opportunity to insert its concerns into the administrative record of every major federal action. The Administration, however, has employed a number of creative but ultimately illegal mechanisms to avoid administrative review of its NEPA decisions.

One such case is Wilderness Society v. Rey.²⁵ Following wildfires in the Bitterroot National Forest during the summer [33 ELR 10685] of 2000, the Forest Service developed a salvage project for the burned areas and released a draft EIS for the project. After soliciting and reviewing public comment on the draft, the Forest Service approved a final EIS that selected a new preferred alternative not included in the draft EIS. By inserting the preferred alternative in the final EIS, but not the draft EIS, the Forest Service effectively deprived the public of the opportunity to comment on the salvage project. Although applicable agency regulations mandated the right to an administrative appeal from such decisions, the Forest Service attempted to deny environmental organizations an administrative appeal. In what the district court described as an "extra legal effort to circumvent the law," the Bush Administration attempted to argue that the final EIS was not a decision from which an administrative appeal was authorized because the final EIS had been signed by Mark Rey, Undersecretary of the U.S. Department of Agriculture (USDA), and was thus a decision of the USDA, not a decision of the Forest Service.²⁶ The district court rejected this approach stating that "the notion that a signature by the Undersecretary transforms the action from Forest Service business to the business of some other agency is mystical legal prestidigitation."²⁷ The court found that the final EIS decision was a Forest Service decision regardless of who signed it, rejected the final EIS, and enjoined the timber salvage operations until the Forest Service complied with the law.

Another strategy of the Bush Administration has been to use state or local agencies to circumvent NEPA law during road construction and other controversial projects. For example, when a certain portion of a highway project becomes controversial, the trend of the Bush Administration has been to conveniently "defederalize" that particular portion and segment it from NEPA review of the rest of the project. This is accomplished by having the state or local government agree to pay for that portion of the road project entirely out of state funding. Since the controversial portions of the project are thus "converted" to state projects, NEPA does not apply and environmental review of the impacts associated with those portions is avoided, even in cases where the segmented portion is integral to the larger "federal" project.

In Old Town Neighborhood Ass'n v. Kauffman,²⁸ the Bush Administration attempted to avoid considering the environmental impacts of a controversial section of a federal highway construction project. The Third Street Project, part of the overall federal project, involved the widening of a downtown city street through which traffic from the highway was to be routed. However, after encountering delays and resistance during the environmental and historic review process, the city of Goshen announced that it would carry out the Third Street Project using only local funds and without NEPA review of the environmental or historical impacts of the project. When this approach was challenged, the defendants argued that the segmentation of the Third Street Project was permissible and not merely an attempt to avoid NEPA. The district court disagreed, finding that the city had continued to plan and coordinate its efforts with state and federal authorities. The court cited internal e-mails that indicated a plan for the city to develop Third Street as a local road, without NEPA review, and then turn it over after construction for use as the route for traffic from the highway. The court determined that the segmentation of the project was done with the purpose and intent of avoiding NEPA review stating that, "such deliberate evasion of these federal laws by carefully carving up one project into smaller segments cannot and should not be tolerated."²⁹ Finding the plaintiffs likely to succeed on the merits of their claims and faced with irreparable harm, the court granted a preliminary injunction enjoining any further construction of the Third Street Project.

In other attempts to circumvent NEPA, the Bush Administration has argued that environmental review of federal agency actions is not yet appropriate because some other governmental approval is necessary before the action can be consummated. In this way, the Bush Administration has attempted to avoid environmental review of controversial projects by making those projects contingent upon future approvals.

In Sierra Club v. U.S. Department of Energy,³⁰ the U.S. Department of Energy (DOE) granted an easement for a road to the mining industry. The proposed gravel mining operation was to be located in the "buffer zone" surrounding the DOE Rocky Flats facility, a highly contaminated site. DOE granted the easement without considering the environmental effects of the road, the road construction, or the expansion of the mining project. When DOE's failure to prepare a NEPA analysis was challenged, the Bush Administration argued that the Sierra Club's challenge was not yet ripe because the road could not be built without additional prior approval. Thus, according to DOE, NEPA was not yet implicated because the road might never be built. The Tenth Circuit rejected the Bush Administration argument that NEPA review was not triggered by the granting of the easement, stating:

The alleged injury is the potential environmental impact of an uninformed decision to grant the easement. This injury is redressable by a court order requiring the DOE to undertake an [sic] NEPA and ESA analysis in order to better inform itself of the consequences of its decision to grant the easement.³¹

The court found that the granting of the easement was a necessary step to advance the road project and hence a sufficient major federal action to trigger NEPA review.

A particularly disturbing trend of the Bush Administration has been to use jurisdictional challenges to delay judicial review of a challenged action and then to carry out the questionable action before the issue can be heard by a court. Since the action has already been carried out, the government then argues that the case is moot because plaintiff has no available remedy.

In Committee for Idaho's High Desert v. Collinge,³² an environmental group sued to stop the implementation of a sage grouse predation control program designed to eradicate coyotes, red foxes, black bears, mountain lions, bobcats, raccoons, badgers, striped skunks, ravens, and magpies from 600 square miles of southern Idaho. The USDA's Wildlife Services section prepared an EA and a supplemental assessment; however, neither the original nor the supplemental [33 ELR 10686] analysis considered the environmental impacts of the complete eradication of numerous species from 600 square miles of sensitive public lands. The Bush Administration argued that the challenge to the sufficiency of its NEPA analysis was not ripe because the program would not be carried out unless future test results showed that predation was a problem. Prior surveys, however, had already established that predation was a problem. The court found that under the circumstances, the initiation of the program was, in common sense terms, inevitable. The court reasoned that if the plaintiffs were forced to wait until the program was inevitably initiated, "the court will be forced to rule on an emergency basis without opportunity for a reasoned presentation and analysis."³³ For these reasons, the court rejected the Bush Administration's ripeness defense and enjoined the proposed program.

Under certain circumstances, NEPA allows agencies to create categorical exclusions from normal NEPA requirements. These exclusions from NEPA are for certain categories of federal actions that an agency has expressly determined will have no appreciable effect on the environment. The categorical exclusions themselves must be promulgated pursuant to notice-and-comment rulemaking and must also provide for "extraordinary circumstances" in which normally excluded actions may have significant environmental impact and thus require NEPA analysis. When approving an action under a categorical exclusion, the agency must submit documentation demonstrating that the specific conditions or criteria are satisfied. Categorical exclusions can be useful to expedite federal agency action that will have no appreciable effect on the environment. However, the Bush Administration has abused the use of categorical exclusions to avoid NEPA review of federal agency actions with significant impacts on the environment.

In Riverhawks v. Zepeda,³⁴ the Forest Service issued permits that allowed power boaters to use a portion of a designated wild and scenic river that was a critical spawning ground for the listed coho salmon. Despite making specific findings that the motor boat use was likely to cause harm to the endangered coho salmon, the Forest Service failed to analyze the environmental impacts of such use. When challenged, the Forest Service argued that the authorization of motor boat use fell into a categorical exclusion from NEPA's requirements. The district court disagreed, finding that the Forest Service's determination that the permitted activities might adversely affect threatened coho salmon established "extraordinary circumstances" that rendered the categorical exclusion inapplicable. The special use permits that had been issued on the basis of the categorical exclusion and without NEPA analysis were accordingly reversed.

Avoiding the EIS Requirement

Another tactic of the Bush Administration has been to shortcut the NEPA process and refuse to prepare an EIS even in cases where the law clearly requires it. Generally, whenever a federal agency engages in a major federal action that may significantly affect the quality of the human environment, the agency must prepare an EIS before it acts. Where it is not clear whether the impacts of the federal action will significantly affect the environment, the agency must prepare an EA to determine whether an EIS is required.³⁵ If the EA reveals either significant uncertainty in the environmental impacts of the federal action, or that the action may have a significant impact on the environment, an EIS must usually be prepared. If the EA reveals that the action will have no significant impacts on the environment, this finding is memorialized in a finding of no significant impact (FONSI), and environmental review is at an end.

The Bush Administration has unsuccessfully attempted to avoid NEPA requirements by simply ignoring environmental impacts that would otherwise require the preparation of an EIS.

In Public Citizen v. U.S. Department of Transportation,³⁶ a group sued the DOT for its decision to prepare an EA and FONSI rather than a full EIS prior to promulgating three rules regarding the regulation of Mexican trucks on U.S. roads. According to the DOT, the rules had the effect of requiring Mexican trucks to comply with U.S. truck safety regulations while using U.S. roads; however, at the time the rule was promulgated a presidential moratorium was in effect prohibiting Mexican motor carriers from using U.S. roads. Because of the moratorium, the DOT argued that it was not required to consider environmental impacts associated with emissions from Mexican trucks in its NEPA analysis. Once it excluded the emissions from Mexican trucks from consideration, it determined there were no significant environmental impacts and issued an EA and FONSI. As soon as the rules went into effect, President Bush lifted the moratorium, attempting to allow the rules to come into effect without NEPA analysis of the environmental impacts of the emissions. The U.S. Court of Appeals for the Ninth Circuit rejected the DOT's argument, stating that, "to restrict consideration of the regulations' 'effects' in the way DOT proposes would contravene not only the plain language of the CEQ regulations, but also the statutory command of NEPA, that environmental effects of government action be considered 'to the fullest extent possible.'"³⁷ The court remanded the rules to the agency for a preparation of a full EIS.

Not surprisingly, the Bush Administration has actively litigated the necessity of preparing an EIS even where the EA reveals significant issues regarding the environmental impacts of an agency action.

In Sierra Club v. Norton,³⁸ the district court rejected an attempt by the Bush Administration to allow the construction of high-rise beach condominiums in the designated critical habitat of a listed endangered species. The developer sought an incidental take permit (ITP) regarding the Alabama beach mouse under the Endangered Species Act (ESA). Despite the fact that habitat loss was the stated and major long-term threat to the survival of the Alabama beach mouse, and the fact that the U.S. Fish and Wildlife Service (FWS) could not determine the impacts of the proposed development on the mouse, the FWS concluded its NEPA analysis with a FONSI and issued the ITP. The Sierra Club sued the FWS to enjoin the issuance of the ITP on the grounds that the uncertainty revealed by the EA required the [33 ELR 10687] preparation of an EIS. The district court agreed with the Sierra Club and rejected the FWS' FONSI, stating that, "such a conclusion is at odds with the absolute, cumulative and relative losses of habitat, and is 'so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'"³⁹

In Makua v. Rumsfeld,⁴⁰ the U.S. Army sought to prepare an EA for live-fire training exercises at the Makua Military Reservation on the western shore of Oahu. The Army consultation with the FWS identified 30 endangered species that the proposed live-fire training exercises threatened with extinction. According to the FWS, these species were particularly sensitive to extinction threats because they did not meet FWS criteria for "stability"—meaning that the loss of just one individual could result in extinction of the species. Despite the extreme risk to endangered species in the area, the Army attempted to avoid preparing an EIS over the impacts of its live-fire training program by including a wildfire suppression plan in its EA. The Army claimed that inclusion of such mitigation measures reduced environmental impacts below the level of significance and precluded the necessity of an EIS. Following a challenge by environmental organizations, the district court rejected the Army's EA and FONSI finding that the EA failed to address the full environmental effect of a potential wildfire. The court found that the mere fact that the Army's mitigation measures contemplated potential wildfires within the designated critical habitat of such sensitive species compelled further NEPA review of the full effects of wildfires on the environment. The court preliminarily enjoined the training until such time as it could address the case on the merits.

Avoiding Accurate Analysis of Environmental Impacts

Whether the Bush Administration has been attempting to avoid NEPA altogether, or avoid doing a full EIS, one common theme throughout all the examined cases has been this Administration's frequent avoidance of accurate environmental analysis. Where a federal agency does choose to prepare an EIS, litigation usually centers around the sufficiency of the EIS itself. Common challenges to the sufficiency of an EIS include challenges to the scope of the environmental review, which includes issues of cumulative impacts, segmentation of projects for NEPA review, the alternatives considered, and the extent and quality of public participation. For both EAs and EIS, it has been quite common for the agencies under the Bush Administration to restrict the environmental review of a proposed action in a manner that supports a decision to proceed with the project. Although NEPA generally has no substantive requirements, an agency action must still be rational and supported by evidence in the administrative record and cannot violate another law in the process.

The Bush Administration has employed several tactics to avoid preparing accurate NEPA analyses that might contain information harmful to its political ends. One tactic has been to truncate the stated scope of the project itself. By very narrowly defining the project, the government can limit the alternatives to be considered on NEPA review and avoid complete analysis of the project by limiting the scope of environmental review, thus conveniently overlooking certain environmental impacts. Another tactic is the segmentation of projects in order to "piecemeal" the NEPA review so that no individual part of the project reviewed alone may have a significant impact.

What these tactics have in common is that they involve seemingly purposeful attempts by the Bush Administration to conceal the true environmental impacts of its actions.

In Friends of the Clearwater v. McAllister,⁴¹ the Forest Service issued an EA and FONSI for a proposed timber sale, but then solicited bids for a much different timber sale. The sale proposed for public comment was for 3 million board feet to be taken from 3,340 acres of forest, while the plan the Bush Administration secretly approved authorized the sale of 9.5 million board feet of timber to be taken from 800 acres of forest, significantly increasing the ecological impacts of the sale. When sued by environmental organizations, the Forest Service argued that the change was not significant and required no further NEPA review. The district court cited evidence in the record indicating that the Forest Service had planned to authorize the larger sale all along while intentionally misleading the public. The Forest Service had frustrated NEPA's public notice-and-comment requirements by proceeding publicly as though the alternatives in the EA were still the ones in consideration even after deciding to proceed with a different sale. The court ultimately rejected this approach stating that, "the bait-and-switch tactic the Forest Service employed defeats the purpose and intent of NEPA to allow the public opportunity to participate in the decision-making process."⁴² The court remanded the matter to the Forest Service to prepare an EA for the amended sale.

Crutchfield v. U.S. Army Corps of Engineers (Crutchfield I)⁴³ provides an example of Bush Administration tactics being less than forthright. In Crutchfield I, the U.S. Army Corps of Engineers (Corps) attempted to segment a waste-water treatment plant project by simply omitting an objectionable portion of the project from its NEPA review. The Corps determined that the environmental impacts from the remaining portion were not sufficient to trigger NEPA review and issued a permit for the project without preparing a NEPA analysis. When this strategy was challenged, the Corps argued that the remaining project had an independent utility and was not improperly segmented. However, the facts indicated that the project, as planned, would still incorporate the objectionable portion, just at a later date and under another permit. The district court denied the Corps' approach, finding that the project could not be segmented as proposed, and remanded the permit to the Corps to consider the entire project. In Crutchfield II, the Corps again proposed the same wastewater treatment plant project for an individual permit. However, after encountering resistance during the public comment period of the NEPA review, the Corps surreptitiously approved the project pursuant to a nationwide permit that did not require NEPA review rather than under the proposed individual permit. Since the nationwide [33 ELR 10688] permit did not require NEPA review the Corps abandoned its NEPA analysis of the project. The district court rejected this approach as well and again remanded the permit to the Corps for reconsideration stating that, "the consequence of that decision was that the Corps did not conduct the requisite environmental assessments of the project that otherwise would have been required under NEPA."⁴⁴

Yet another way the Bush Administration has attempted to erode NEPA and avoid an honest assessment of the environmental consequences of its actions has been to prepare insufficient NEPA documents and when challenged, pledge to "voluntarily" withdraw the original NEPA document and prepare a new one. Once it has pledged to withdraw the offending document, the Bush Administration then argues that the lawsuit challenging the NEPA document should be dismissed as moot. If a court accepts such an argument the Bush Administration can perpetually avoid NEPA review by simply withdrawing the offending NEPA document until the suit is dismissed, and then resubmit the same document over and over again as the harmful action itself proceeds. This was the case where the Army feigned retreat from an unlawful EA in the Hawaiian Islands.

In Makua v. Rumsfeld,⁴⁵ the Army was sued following the release of an EA and FONSI from its proposal to conduct beach assault, live-fire training exercises on an area inhabited by 30 extremely sensitive, federally listed endangered species. In order to avoid a hearing on the merits, the Army moved to dismiss the complaint, arguing that its voluntary withdrawal and reconsideration of the EA rendered the NEPA action moot. Despite proclaimed voluntary withdrawal of the plan, the Army stated that its reconsideration of the EA and FONSI could result in a decision to prepare an EIS, to issue a revised FONSI, or to re-issue the previous EA and FONSI substantially unchanged. The district court rejected this approach stating:

A party claiming mootness has the heavy burden of establishing that it is not conveniently stopping the complained-of activity, only to resume once a suit is dismissed…. Clearly dismissal in that context could expose a plaintiff to the risk of having to run to court repeatedly, only to be stymied each time as the defendant voluntarily, but temporarily, ceases its actions.⁴⁶

Accordingly, the court found that "Defendants do not show that Malama's claims have been rendered moot by Defendants' voluntary withdrawal of the SEA and FONSI."⁴⁷

Sometimes the current Bush Administration is very bold with its antienvironmental agenda. This has been particularly true with the Forest Service, which not only has attempted to gut the roadless rule that would protect 58.5 million acres of sensitive public lands, but also has rescinded the wildlife and biodiversity planing rules recommended by a blue ribbon committee of scientists. In addition, scores of ecologically damaging projects have been approved through a plethora of (illegal) administrative or judicial ploys.

In Kootenai Tribe of Idaho v. Veneman⁴⁸ and Idaho ex rel. Kempthorne v. U.S. Forest Service,⁴⁹ the Bush Administration refused to defend the Dombeck roadless rule against NEPA challenge. In Kootenai and Idaho v. U.S. Forest Service,⁵⁰ after finding insufficient support for a change in the rules, the agency again refused to defend the roadless rules against an industry NEPA challenge. Instead, the Bush Administration handed victory to the wise-use and industry plaintiffs, stating that "the USDA shares plaintiff's concerns about the potential for irreparable harm in the long-term [sic] under the current rule."⁵¹ The "harm" referred to was the speculative harm that might befall the forests subject to the roadless rule if the Forest Service curtailed "management and maintenance" activities because of lack of roads. The district court cited the Bush Administration's agreement with the concerns of industry groups and ruled to enjoin application of the roadless rules. This injunction was dissolved on appeal by the Ninth Circuit, which stated: "The Forest Service, now governed by a new presidential administration which is perhaps less sympathetic to the Roadless Rule, expressed concern 'about the potential for irreparable harm in the longterm' [sic] caused by the Roadless Rule."⁵² The Ninth Circuit rejected such concerns stating: "NEPA may not be used to preclude lawful conservation measures by the Forest Service and to force federal agencies, in contravention of their own policy objectives, to develop and degrade scarce environmental resources."⁵³

An Independent Judiciary

As the Supreme Court case Bush v. Gore⁵⁴ aptly demonstrated, federal judges can tremendously impact the functioning of democracy in our republic. Although the overwhelming majority of the Bush Administration's NEPA-hostile arguments have been found unlawful by federal judges, including Republican-appointed judges, there is statistical evidence indicating that Republican-appointed judges have been more likely to accept NEPA-hostile arguments than Democrat-appointed judges. Given some of President Bush's recent judicial nominees, many of whom have environmentally suspect records, the composition of the federal courts could dramatically change in the coming years. In the cases reviewed for this Article, Republican-appointed district court judges were nearly twice as likely to agree with NEPA-hostile arguments as were Democrat-appointed district court judges. Republican-appointed district court judges agreed with NEPA-hostile arguments 20% of the time while Democrat-appointed district court judges agreed with NEPA-hostile arguments 13%. At the court of appeals level, the difference was more striking. Where the composition of the three-judge federal appellate panel was composed of a majority of Republican-appointed judges, the success rate of NEPA-hostile arguments was 60%, as opposed to only 11% where Democrat-appointed judges constituted [33 ELR 10689] the majority of the panel. The overall record for Republican-appointed courts was 26% agreement with NEPA-hostile arguments as opposed to 13% for Democrat-appointed courts.⁵⁵ The correlation between partisan voting tendencies and environmental issues documented in this Article is consistent with the results of previous studies on the topic.⁵⁶ Despite the existence of several outstanding Republican-appointed jurists, the reality is that partisanship and ideology now increasingly influence the judicial review of executive branch actions to an unprecedented extent.⁵⁷

Conclusion

What emerges from this study is a Bush Administration that is actively pursuing an aggressive antienvironmental agenda, and then cynically using the ensuing litigation to proffer arguments that harm NEPA itself. By law, the federal courts are generally required to grant administrative agency decisions great deference,⁵⁸ but the federal courts are now the last lines of defense against an executive branch that has demonstrated itself to be inimical to the rule of environmental law. NEPA, one of the most effective and enduring tools we possess for ensuring that federal actions do not irreversibly harm our natural heritage, is under undeniable assault.

Appendix A

Judicial Accountability NEPA Project Methodology

The Judicial Accountability Project is intended to survey federal court cases involving federal environmental laws decided since the beginning of the current Bush Administration. The Article covers the NEPA arguments made by the Bush Administration in federal court cases decided from January 21, 2001, to January 21, 2003, and the results of these legal arguments. The project is intended to yield data about the arguments made by the Bush Administration in federal court proceedings and the results of those arguments during this period. The expectation is that these data will allow accurate analysis of the Administration's track record in federal litigation as it pertains to NEPA issues.

Methodology for this project is best described in terms of: the Survey Process, which determines the cases to be included; the Case Review Database, which allows the incorporation of case information in an easily referenced and searchable format; and Numerical and Narrative Reports, which summarize information from the Case Review Database.

The Survey Process

Initial Survey of Federal Court Actions for Project Relevance

The initial review involves broad electronic searches on both Westlaw and Lexis, using key terms related to environmental law, to derive a comprehensive list of all federal court decisions with implications for NEPA law. The decisions covered in this Article may be either final dispositive decisions that ultimately resolve a case, or decisions on motions resolving important procedural or substantive aspects of a case. The survey is intended to canvass the universe for federal court decisions as comprehensively as possible.

Out of this universe of court decisions, relevant cases are selected or rejected for inclusion in the substantive review process on the basis of the presence or absence of two elements: federal government involvement in the case; and presence of significant NEPA issues. A description of these elements follows.

Did the Federal Government Participate in the Action?

In NEPA litigation generally, the federal government is directly involved as the defendant. In certain NEPA cases, however, many traditionally federal NEPA responsibilities may be delegated to state lead agencies. Despite the fact that the only proper defendants in NEPA lawsuits are federal agencies, some lawsuits presenting NEPA issues bear captions listing state agencies or officials as defendants. The only cases selected for review and inclusion in the database are those cases in which the federal government was present as a defendant.

Were Significant NEPA Issues Presented and Decided?

Significant NEPA issues are deemed presented when arguments are made that could significantly affect NEPA itself, or agency rules or regulations implementing NEPA or a significant environmental resource protected by NEPA. The cases included in the database are those cases in which the reviewing court specifically reached the NEPA arguments in its decision.

Some examples of cases rejected in the initial survey for project relevance are: contribution actions under the Comprehensive Environmental Response, Compensation, and Liability Act; federal enforcement actions; employment discrimination actions; and government contract actions. Many other cases were rejected where the specific facts of the case indicated that no substantive NEPA issues were present. For example, a clearly relevant NEPA case may result in several interim judicial decisions related to issues that may not have NEPA implications, like motions to transfer venue, motions to intervene, motions for attorneys fees, in addition to an ultimate decision on the NEPA issues. Once the initial review eliminates the clearly inapplicable decisions, the remaining decisions presenting NEPA issues are subjected to a thorough, substantive review. Out of approximately 700 "NEPA" cases initially retrieved through electronic searches, approximately 400 made the first cut for presenting significant NEPA issues.

[33 ELR 10690]

Substantive Review of Applicable Cases

Cases making the first cut for relevance to the project as described above are next carefully examined for inclusion within the Judicial Accountability Case Review Database. Generally, these are cases that appeared to present NEPA issues on cursory examination, but are found not to present such issues on closer examination. Some examples: further decisions on interim motions, which closer examination revealed did not present true NEPA issues; and cases in which a NEPA document was discussed as evidence establishing elements in an ultimately non-NEPA case.

Substantive review provided a more rigorous filter for database applicability and for the correct categorization of legal arguments and results. Out of the 700 cases reviewed, fewer than 200 were placed into the final database as a result of the several screens we applied to eliminate cases not directly germane to our inquiry.

Clinton-Inherited Cases

A number of otherwise relevant cases originated under the Clinton Administration and carried over into the current Bush Administration. There are even some cases that originated under the previous Bush Administration (under President George H.W. Bush) predating even President William J. Clinton. The methodology for determining which arguments are counted as attributable to the current Bush Administration from these overlapping cases focuses on the motion that proved dispositive of a particular case. Regardless of when the case was filed, if the current Bush Administration filed the particular motion, or a substantial revision of the motion, upon which the court ruled in a particular decision, it is counted as a Bush Administration argument.

Subsequent Appellate Decisions

A number of decided cases in which the Bush Administration presented arguments were subsequently the subject of appeals. In cases where the appellate court overturns the lower court, only the appellate case is reflected in the database in order to avoid the confounding effect of having a case reported with two different outcomes.

Judiciability Arguments

The Bush Administration made a number of judiciability arguments in the surveyed NEPA cases. The judiciability arguments that are counted for the purposes of this study are NEPA-specific judiciability arguments.

The Case Review Database

The following information is compiled in the Case Review Database: Database Tracking Number; Case Caption; Case Citation; Court; Docket Number; Date of Decision; Category; Statement of Case; Procedural Posture of the Case; Issues Presented in the Case; Government Argument; Court Holding; Result of the Case; Whether the Case Originated Under Clinton; Whether the Court Decision Was Consistent With the Government Argument; Deciding Judge; President Nominating the Deciding Judge; and Year of Nomination.

NEPA-Hostile Versus NEPA-Consistent

The project placed all Bush Administration NEPA arguments into one of two categories: NEPA-hostile or NEPA-consistent. Making this determination was central to this study, and we undertook the task carefully and conservatively.

Government arguments are categorized as "NEPA-hostile" where substantial evidence exists, either within the government's arguments or the court's interpretation and reiteration of those arguments, that the government advocated a position avoiding or eroding NEPA law and accepted precedent. Cases falling into this category include: (1) cases where the Bush Administration used judiciability arguments, rejected by the reviewing court, to attempt to avoid judicial review of its failure to prepare some NEPA analysis; (2) cases where the court rejected Bush Administration arguments that it was not required to conduct some further NEPA analysis; (3) cases in which the Bush Administration sought to defend NEPA analyses found significantly defective or incomplete by the reviewing court¹; and (4) cases in which the arguments of the Bush Administration, although accepted by the reviewing court for whatever reason, were demonstrably hostile to the goals, intent, or legal precedent of NEPA.²

Government arguments are categorized as "NEPA-consistent," i.e., either NEPA-friendly or NEPA-neutral, where the evidence indicates the government advocated a position not tending to erode NEPA law or accepted precedent. Cases falling into this category include: those in which the Bush Administration argued, and the reviewing court agreed, that it had complied with the requirements of NEPA and based its arguments on the adequacy of the facts contained in the administrative record; and cases in which the Bush Administration defended its actions or decisions against petitioners asserting interests hostile to the goals and intent of NEPA. The Bush Administration lost only three cases in which it presented NEPA-consistent arguments.³

Numeric Data

The numeric data discuss the total number of cases: included in the survey; in which the Bush Administration presented [33 ELR 10691] NEPA-hostile arguments; in which the reviewing court agreed with the Bush Administration's NEPA-hostile arguments; in which the Bush Administration presented NEPA-consistent arguments; and in which the reviewing court agreed with the Bush Administration's NEPA-consistent arguments.

Narrative Report

The narrative report is a descriptive, qualitative summary of the arguments the Bush Administration presented in the cases included within the survey subject area. The intent is to analyze the legal arguments made by the Bush Administration and the ramifications of those arguments in order to illustrate trends in the Bush Administration's efforts to fulfill its statutory and regulatory NEPA responsibilities. The report also discusses the consistency between the Bush Administration's interpretation of environmental laws and the interpretation of those laws by the federal courts. The narrative report focuses on key cases which are described in some detail to illustrate trends, themes, and patterns in the Bush Administration's legal arguments in NEPA litigation.

Assessment of Judicial Voting Records

The Assessment of Judicial Voting Records tracks the trends of the judiciary in deciding cases when presented with NEPA-hostile arguments. Information is compiled on the judge or judges of record in each case, including who appointed the judge. Information is then compiled tracking the number of times judges appointed by Republicans or Democrats presented with NEPA-hostile arguments agreed with those arguments. For the district courts information is compiled on a straight partisan analysis. For the courts of appeals, information is compiled for 100% Republican-appointed panels, 66.7% Republican-appointed panels, 66.7% Democrat-appointed panels, and 100% Democrat-appointed panels.

Appendix B

Numeric Analysis of NEPA Case Database Information

As discussed in the methodology appendix, information contained in the database was analyzed in several ways in order to arrive at an accurate assessment of the NEPA arguments made by the Bush Administration. Many of the cases initially included in the survey were cases that originated under the Clinton Administration but were decided during the first two years of the current Bush Administration. Within the class of cases that originated under the Clinton Administration were cases that were decided as postured and argued by the Clinton Administration. There were also cases filed under the Clinton Administration in which the current Bush Administration presented significant NEPA arguments. The cases that were eliminated from this study as "Clinton-Inherited" cases were cases commenced under the Clinton Administration in which the Bush Administration presented no substantive arguments on the NEPA issue or issues presented in the motion that proved dispositive of the case. Thirty-five cases fell into this category.

Some of the district and administrative court cases decided under the current Bush Administration have been subsequently ruled on by the courts of appeals. Applicable cases involving decisions of lower courts which were subsequently overturned in an appellate decision were also eliminated from the study. Cases falling into this category were eliminated in order to avoid the confounding effect that might result from having a case decided two different ways. Twelve cases fell into this category.

Total cases in which the Bush Administration presented NEPA arguments:

Total number of relevant NEPA cases:(NEW COLUMN)219

Number of cases inherited from Clinton:(NEW COLUMN)35

Number of cases later overturned on appeal:(NEW COLUMN)12

Total number of NEPA cases reflected in the

National Wildlife Federation Report:(NEW COLUMN)172

Total number of NEPA cases in which the

court agreed with the Bush Administration's arguments:(NEW COLUMN)95

Percentage of overall Bush Administration wins:(NEW COLUMN)55%

Percentage of overall Clinton Administration wins:(NEW COLUMN)74%

NEPA-hostile arguments:

Total number of NEPA cases in which the

Bush Administration presented NEPA-hostile arguments:(NEW COLUMN)94

Total number of NEPA cases in which the court

agreed with the Bush Administration's NEPA-hostile arguments:(NEW COLUMN)21

Percentage of Bush Administration wins on

NEPA-hostile arguments:(NEW COLUMN)22%

NEPA-consistent arguments:

Total number of NEPA cases in which the Bush

Administration presented NEPA-consistent arguments:(NEW COLUMN)78

Total number of NEPA cases in which the court

agreed with the Bush Administration's NEPA-consistent arguments:(NEW COLUMN)75

Percentage of Bush Administration wins on

NEPA-friendly and NEPA-neutral arguments:(NEW COLUMN)96%

The agencies under the Bush Administration presenting losing NEPA-hostile arguments were:

Forest Service (forest issues):(NEW COLUMN)25 or 34%

Department of the Interior (species

protection and energy):(NEW COLUMN)16 or 22%

DOT (road construction):(NEW COLUMN)11 or 15%

Corps (wetlands):(NEW COLUMN)9 or 12%

National Marine Fisheries Service (ocean resources):(NEW COLUMN)6 or 8%

Department of Defense:(NEW COLUMN)3 or 4%

Other:

Wildlife Services:(NEW COLUMN)1 or 1.3%

U.S. Environmental Protection Agency:(NEW COLUMN)1 or 1.3%

Department of Housing and Urban

Development:(NEW COLUMN)1 or 1.3%

National Science Foundation:(NEW COLUMN)1 or 1.3%

DOE:(NEW COLUMN)1 or 1.3%

[33 ELR 10692]

Bush v. Clinton:

Bush: 219 total NEPA cases 55% overall win ratio

Clinton: 105 total NEPA cases 74% overall win ratio

[SEE Figure B-1 Bush NEPA Arguments IN ORIGINAL]

[SEE Figure B-2 Bush NEPA Losses IN ORIGINAL]

[SEE Figure B-3 Bush NEPA Losses IN ORIGINAL]

[SEE Figure B-4 Total and NEPA-Hostile IN ORIGINAL]

[33 ELR 10693]

Appendix C

Tracking the Federal Judiciary

This section provides the federal court record on NEPA-hostile arguments in cases decided from January 21, 2001, to January 21, 2003.

District Courts

At the district court level, Republican-appointed judges were presented with NEPA-hostile arguments 30 times. Republican-appointed judges agreed with NEPA-hostile arguments six times. This represents a 20% win ratio for NEPA-hostile arguments before Republican-appointed district court judges.

At the district court level, Democrat-appointed judges were presented with NEPA-hostile arguments 52 times. Democrat-appointed judges agreed with NEPA-hostile arguments seven times. This represents a 13% win ratio for NEPA-hostile arguments before Democrat-appointed district court judges. See Figure C-1.

Administrative Courts

At the administrative judicial level, administrative law judges were presented with NEPA-hostile arguments 10 times. Administrative law judges agreed with NEPA-hostile arguments five times. This represents a 50% win ratio for NEPA-hostile arguments before administrative law judges. See Figure C-1.

[SEE Figure C-1 Lower Court Record ORIGINAL]

Courts of Appeals

At the court of appeals level, 100% Republican-appointed panels were presented with NEPA-hostile arguments once, and did not agree. This represents a 0% win ratio for NEPA-hostile arguments before a three-judge panel consisting of three Republican-appointed judges.

At the court of appeals level, two-thirds Republican-appointed panels were presented with NEPA-hostile arguments four times, and agreed with those arguments three times. This represents an 75% win ratio for NEPA-hostile arguments before a three-judge panel consisting of two Republican-appointed and one Democrat-appointed judges.

At the court of appeals level, two-thirds Democrat-appointed panels were presented with NEPA-hostile arguments 13 times, and agreed with those arguments once. This represents an 8% win ratio for NEPA-hostile arguments before a three-judge panel consisting of one Republican-appointed and two Democrat-appointed judges.

At the court of appeals level, 100% Democrat-appointed panels were presented with NEPA-hostile arguments five times, agreeing once. This represents a 20% win ratio for NEPA-hostile arguments before a three-judge panel consisting of three Democrat-appointed judges.

Where the court of appeals three-judge panel was composed of a majority (100% or 66.7%) of Republican appointees, it found in favor of NEPA-hostile arguments three out of five times, or 60% of the time. Where the court of appeals three-judge panel was composed of a majority of Democrat appointees, it found in favor of NEPA-hostile arguments two out of 18 times or 11% of the time. See Figure C-2.

The overall record for Republican-appointed courts was 26% agreement with NEPA-hostile arguments as opposed to 13% for Democrat-appointed courts. See Figure C-3.

[SEE Figure C-2 Appellate Court Record IN ORIGINAL]

[SEE Figure C-3 Overall Court Record IN ORIGINAL]

1. The full methodology utilized for the project is contained in Appendix A.

2. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

3. Id. § 4321, ELR STAT. NEPA § 2.

4. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 13 ELR 20544, 20546 (1983) (citations omitted).

5. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 6 ELR 20532, 20537 n.21 (1976) (citing Natural Resources Defense Council v. Morton, 458 F.2d 827, 837, 2 ELR 20029, 20034 (D.C. Cir. 1972)).

6. 40 C.F.R. § 1507.1 ("All agencies of the Federal Government shall comply with these regulations.").

7. Andrus v. Sierra Club, 442 U.S. 347, 351, 9 ELR 20390, 20393 (1979).

8. 40 C.F.R. § 1500.1(b).

9. Id. § 1500.1(a).

10. Id. § 1500.1(b).

11. Id. § 1502.24.

12. Id. § 1502.22.

13. Id. § 1500.1(c).

14. Id. § 1502.14.

15. Sierra Club v. Department of Transp., 753 F.2d 120, 127 (D.C. Cir. 1985) (describing criteria for reviewing an agency's decision to forego preparation of an EIS: "Once the agency has identified the problem it must have taken a 'hard look' at the problem in preparing the EA.").

16. 40 C.F.R. § 1508.4.

17. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814, 29 ELR 21168, 21173 (9th Cir. 1999).

18. See generally Appendix B.

19. 157 IBLA 259 (IBLA 2002) (On Reconsideration of 156 IBLA 347).

20. Park County Resource Council, Inc. v. Department of Agric., 817 F.2d 609, 17 ELR 20851 (10th Cir. 1987).

21. 157 IBLA at 269 (emphasis added).

22. No. 01-07781 (C.D. Cal. Sept. 19, 2002).

23. 55 ERC 1873 (N.D. Cal. 2002).

24. Id. at 1876.

25. 180 F. Supp. 2d 1141, 32 ELR Digest 20440 (D. Mont. 2002).

26. Id. at 1148, 32 ELR Digest at 20440.

27. Id. (emphasis added).

28. No. 1:02-cv-1505-DFH, 2002 WL 31741477 (S.D. Ind. Nov. 15, 2002).

29. Id. at *22 (emphasis added).

30. 287 F.3d 1256, 32 ELR Digest 20642 (10th Cir. 2002).

31. Id. at 1265-66, 32 ELR Digest at 20642.

32. 148 F. Supp. 2d 1097 (D. Idaho 2001).

33. Id. at 1100 (emphasis added).

34. 228 F. Supp. 2d 1173, 32 ELR 20765 (D. Or. 2002).

35. See, e.g., 40 C.F.R. § 1508.27.

36. 316 F.3d 1002 (9th Cir. 2003).

37. Id. at 1022 (emphasis added).

38. 207 F. Supp. 2d 1310 (S.D. Ala. 2002).

39. Id. at 1336 (emphasis added) (quoting Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 13 ELR 20672, 20676 (1983)).

40. 163 F. Supp. 2d 1202 (D. Haw. 2001).

41. 214 F. Supp. 2d 1083, 32 ELR 20040 (D. Mont. 2002).

42. Id. at 1089, 32 ELR at 20040 (emphasis added).

43. 154 F. Supp. 2d 878 (Crutchfield I); 192 F. Supp. 2d 444 (E.D. Va. 2001) (Crutchfield II).

44. 192 F. Supp. at 448 (emphasis added).

45. 136 F. Supp. 2d 1155 (D. Haw. 2001).

46. Id. at 1164 (emphasis added) (citing Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708, 30 ELR 20246, 20250 (2000) (the burden "lies with the party asserting mootness").

47. 136 F. Supp. at 1164-65.

48. 142 F. Supp. 2d 1231, 31 ELR Digest 20617 (D. Idaho 2001).

49. 142 F. Supp. 2d 1248 (D. Idaho 2001).

50. No. CV01-11-N-EJL, 2001 U.S. Dist. LEXIS 21990 (D. Idaho May 10, 2001).

51. Id. at *4.

52. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1124, 33 ELR 20130 (9th Cir. 2002) (emphasis added).

53. Id. at 1123, 33 ELR at 20130 (emphasis added).

54. 531 U.S. 98 (2000).

55. See generally Appendix C. See generally Richard Lazarus, Courts Face a New "Republican Moment," ENVTL. F., Jan./Feb. 2003, at 8.

56. See Richard J. Pierce Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999) ("Republican judges voted to deny standing to environmental plaintiffs in 79.2[%] of cases, while Democrat judges voted to deny standing to environmental plaintiffs in only 18.2[%] of cases." Id. at 1760.). See also Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997) (From 1987 to 1994, panels consisting of 2 Democrats and 1 Republican reversed EPA on procedural grounds raised by industry in between 2% and 13% of cases. During the same period, panels consisting of 2 Republicans and 1 Democrat reversed EPA in 54% to 89% of cases.).

57. See generally Marbury v. Madison, 5 U.S. 137 (1803).

58. See, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984) (deference to an agency's reasonable interpretation is required unless the U.S. Congress expressed its intent unambiguously).

1. Examples of cases falling into the first three categories (1-3) are found in the narrative summary and track the major categories in the report.

2. See, e.g., Burkholder v. Wykle, 2002 U.S. Dist. LEXIS 4850 (N.D. Ohio 2002) (finding that preparation of an EA by a self-interested contractor and actions by state lead agency violated both Federal Highway Administration and CEQ regulations, but upholding the EA and FONSI); Sierra Club v. Corps of Eng'rs, 295 F.3d 1209, 32 ELR 20823 (11th Cir. 2002) (finding that a Corps EIS failed to address major threats to four endangered species due to reliance on outdated biological assessment, but upholding the EIS because agency reliance on the outdated document did not rise to the level of an abuse of discretion).

3. See Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 32 ELR 20734 (10th Cir. 2002) (government argued that it was not required to prepare an EIS prior to designating critical habitat, but the court held that Tenth Circuit precedent did require an EIS); Dierker v. Clarke, 48 Fed. Appx. 267, 33 ELR 20094 (9th Cir. 2002) (government defended a district court decision that the NEPA challenge was not ripe because permit had not yet issued, but the court held that the permit had subsequently issued during appeal); TOMAC v. Norton, 193 F. Supp. 2d 182 (D.D.C. 2002) (government argued that the plaintiffs had no standing because they complained of economic harm not within NEPA's zone of interests, but the court held that taxpayer group's interest deemed more than economic).