ENVIRONMENTAL PROTECTION OUTLINE
Duties of the Environmental Lawyer
Common Law Background
Judicial Control of Administrative Environmental Decision-making
THE NATIONAL ENVIRONMENTAL POLICY ACT
Scope of an EIS
Adequacy of the EIS
Substantive vs. procedural
a. There is a distinction between a challenge to the adequacy of an impact statement and a challenge to the merits of the decision.
b. The P first alleges that an EIS should have been completed, or if one was, that it was inadequate. The duty to prepare an adequate impact statement is the procedural duty.
i. The P will want an injunction to protect the status quo until there is a proper EIS completed. Sometimes the court will grant it.
c. The agency’s responsibility to reject or modify a proposal because of an unsatisfactory EIS is NEPA’s substantive duty.
d. The P can’t really allege that the agency made a wrong decision – if the court decides that the EIS was sufficient, the court cannot decide the choice of action to be taken.
e. NEPA does not mandate particular results, but simply prescribes the necessary process.
How the statement is prepared
a. First the agency must file a Notice of Intent in the Federal Register that they will prepare an impact statement. This must briefly describe the proposed action, possible alternatives, the proposed scoping process, and a lead agency contact.
b. The agency must then determine the scope of the uses to be addressed and the significant issues related to the proposed action.
c. Then the agency prepares a draft environmental impact statement, which is circulated for comment to federal, state, and local agencies, the applicant, the public, and interested parties.
i. This commenting procedure does not authorize a veto by the commenting agency.
ii. The EPA must comment on an agency’s proposal
d. The agency finally prepares the final impact statement that responds to all the comments on the draft statement.
e. The agency prepares a concise public record of decision with the final decision, the alternatives considered, and whether all practicable means to avoid or minimize harm were adopted.
f. Agencies must prepare a Supplemental Environmental Impact Statement when significant new circumstances or information affects the proposed action.
g. In many cases, more than one agency needs to approve the project. A lead agency must be designated in this situation.
The alternatives requirement
h. Agencies must study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.
i. CEQ regulations require federal agencies to consider the no-action alternative, other reasonable courses of action, and mitigation measures not in the proposed action.
j. Courts have limited the alternatives agencies must consider to the statutory objectives of their action.
k. NRDC v. Morton – The agency must look at measures outside the direct authority, especially when (as here), it affects national policy/actions by other agencies. (This was limited a bit by Yankee Nuclear Power Corp.)
i. The court said that there is a rule of reason – must look to what are reasonably possible alternatives, even from other agencies. Somehow must draw the line between what is a reasonable alternative, and what is too speculative. Once a reasonable alternative is identified, the agency must produce a reasonable discussion of it.
l. Courts will usually defer to an agency’s decision on the range of alternatives considered if it appears sufficiently comprehensive and there is no attempt to eliminate alternatives that could be viable options.
m. The scope of an impact statement is defined by the geographic extent of the action covered. Many projects are done in stages, and the agency must decide if the individual segments may be divided for impact statement purposes.
n. Wisconsin’s Environmental Decade v. State
i. Impermissible segmentation is defining a project too narrowly for purposes of environmental analysis.
ii. Courts look at the manner in which the segments were planned, their geographic locations, the independent utility, if it is a separate unit or if it is so intertwined that it is but an increment of a larger plan, and if they are logical starting and ending points.
o. Thomas v. Peterson
i. The Forest Service prepared an environmental assessment of a road in a national forest and decided no EIS was necessary. It then issued environmental assessments for proposed timber sales that would use the new road.
ii. The cumulative impacts of the road with any possible timber sales must be considered. If the sales are sufficiently certain to justify construction of the road, then they are sufficiently certain for their environmental impacts to be analyzed along with those of the road.
a. The first issue is whether an environmental impact statement must be prepared at all. Agencies may adopt categorical exclusions if a proposed action is not covered by NEPA.
b. If the action is not a categorical exclusion, the agency can prepare an impact statement or an environmental assessment
c. The first requirement for an action to require an impact statement is that it is federal. There must be a federal nexus – either federal funding, a federal license, or projects that federal agencies carry out.
d. NEPA does not apply if agency action is non-discretionary.
e. Sometimes federal agency inaction might require an impact statement. However, this is usually only required when a federal statute compels the agency to act and it does not do so.
Major federal action significantly affecting the environment
f. The action must also be major and significantly affecting the environment.
g. Hanly v. Kleindienst
i. Significant – (1) look at the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it, and (2) the absolute quantitative adverse environmental effects of the action itself
h. NEPA is not limited to impacts on the natural environment, but the socio and economic impacts must be associated with a primary physical impact (City of Rochester).
i. Catron County v. US Fish and Wildlife Service
i. Courts have approved noncompliance with NEPA on the basis of statutory conflict after finding either (a) an unavoidable conflict between the two statutes that renders compliance with both impossible, or (2) duplicative procedural requirements between the statutes that essentially constitute functional equivalence, rendering compliance with both superfluous
ii. Even if the federal agency believes that on balance the effect of the action will be beneficial, regulations promulgated by the CEQ nonetheless require an impact statement
j. Congress can grant full or partial exemptions from NEPA
Calvert Cliffs v. US Atomic Energy Comm’n
a. NEPA makes environmental protection a part of the mandate of every federal agency and department
b. Agency duties under NEPA are judicially enforceable
Section 4331 (NEPA Sec. 101) – Congressional declaration of national environmental policy
NEPA Sec. 102 – All federal agencies should consider environmental values along with economic and technological considerations and prepare and environmental impact statement for any major federal action significantly affecting the environment
NEPA Sec. 103 – Each federal agency should develop its own NEPA procedures
NEPA Sec. 104 – the Act applies to all federal agencies
Access to the Courts (Standing)
a. Third parties who seek judicial review of agency actions must have standing to sue or they will be denied access to the courts
b. Sierra Club v. Morton
i. When a part
nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion of either
1. Intentional and unreasonable
a. Unreasonable if the gravity of the harm outweighs the utility of the action
i. Gravity – look at the extent and character of the harm, the social value of the use invaded, the suitability of the use to the location, and the burden on the P to avoid the harm
ii. Utility – look at the social value of the conduct, the suitability of the conduct to the location, and the impracticability of avoiding the invasion
2. Negligent or reckless
3. As a result of an abnormally dangerous activity
ii. Public – A private person can bring a public nuisance action if a private member of the community suffers a special injury that is different in kind than that suffered by the rest of the people
d. Village of Wilsonville v. SCA Services
i. Equitable relief is that which may be granted upon the threat of harm which has not yet occurred. Here it is highly probable that the chemical-waste disposal site will bring about a substantial injury.
e. To obtain injunctive relief in a nuisance action, the P must show (1) that a tort has been committed or one is threatened, (2) an adequate remedy is otherwise not available, (3) the balance of convenience or social utility favors the injunction
i. Injury is imminent if there is a threat that harm will occur in the immediate future and the anticipated harm is practically certain to result from the act which the P seeks to enjoin
f. The difficulty of proving causation often stymies common law tort actions filed by Ps exposed to toxic substances
g. One of the major innovations of environmental law has been to substitute risk as a proxy for injury. To recover for a toxic tort, the P must prove (1) exposure in an amount and over a period of time sufficient to cause the disease complained of, (2) the occurrence of the disease, (3) the elapse of an appropriate time interval between exposure and disease, (4) a scientifically recognized relationship between the chemicals and the disease, and (5) the absence of alternative equally probable explanations
i. The court generally requires the P to show a greater than 50% probability
ii. Fear of increased risk of cancer is a present injury and compensable, but only for reasonable fear
iii. Some courts, while rejecting damages for cancerphobia, have recognized a right to recover damages for the medical expenses necessary to monitor the enhanced risk
Statutory Causes of Action
h. Boomer v. Atlantic Cement Co.
i. The court in a common law action nuisance action refused to order the closing of a plant responsible for generating air pollution that adversely affected neighboring property, but did require damages to be paid
There is the duty of confidentiality to honor the client’s confidences and secrets
There is an ethical duty not to assist the client in committing any illegal acts
There is a possible statutory duty to report any unsafe/illegal environmental conditions
There is a moral duty to protect others from unsafe environmental conditions