Tag: NEPA

D.C. CIRCUIT COURT OF APPEALS FINDS COUNCIL ON ENVIRONMENTAL QUALITY LACKS AUTHORITY TO ISSUE NEPA REGULATIONS

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In an opinion published on November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir. 2024) 121 F.4th 902, found that the Council on Environmental Quality’s (CEQ’s) regulations implementing the National Environmental Protection Act (NEPA) were ultra vires and thus invalid. The court held that CEQ lacked authority to issue such regulations because its rulemaking authority was tied not to a Congressional act but to a presidential Executive Order.

BACKGROUND

The National Parks Air Tour Management Act of 2000 requires the Federal Aviation Administration (FAA) and the National Park Service (NPS) to develop plans regulating tour flights over national parks throughout the United States. Pursuant to the Act, the FAA and NPS issued an Air Tour Management Plan governing tourist flights over four Bay Area, California national parks: the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore. The Agencies determined that they did not need to prepare an environmental analysis under NEPA because the Plan, as compared to what currently existed, would cause little to no additional environmental impacts.

THE COURT OF APPEALS’ OPINION

Several environmental organizations and one area resident petitioned for review of the Plan, arguing that the Agencies violated NEPA and the CEQ’s NEPA regulations. Petitioners argued that the Agencies violated CEQ’s regulations by foregoing an environmental assessment; the Agencies denied the claim and defended their action by invoking the same regulations.

The D.C. Circuit declined to address the merits of these arguments and instead independently held that CEQ’s regulations—which purport to govern how all federal agencies must comply with NEPA—are ultra vires and thus invalid.

Historical Legal Background

The CEQ traces its rulemaking authority not to a legislative act, but to a presidential Executive Order (EO). But because an EO is neither legally binding nor has the force of law, CEQ’s authority to issue regulations raises a separation of powers issue.  NEPA, on the other hand, is a legislative act that Congress adopted in 1969, which requires each federal agency to issue a detailed statement addressing the environmental impact of any proposed major federal action that significantly affects the quality of the human environment. All federal agencies must develop procedures that implement NEPA. The Act also created the CEQ within the Executive Office of the President, to be run by three presidentially appointed Commissioners who are confirmed by the Senate. CEQ’s job is to “review and appraise” agencies’ compliance with NEPA, make recommendations to the President with respect thereto, and develop and recommend to the President national policies to foster and promote the improvement of environmental quality.

In 1970, President Nixon issued an EO instructing CEQ to issue guidelines on how federal agencies should prepare the detailed environmental analyses NEPA required. CEQ subsequently published a memorandum with guidelines for federal agencies to consider when considering or preparing environmental impact statements. At the time, several courts regarded CEQ’s role as “merely advisory” because it lacked authority to prescribe regulations that governed or mandated compliance with NEPA. CEQ, however, held a different view, and considered its NEPA guidelines to be mandatory non-discretionary standards that federal agencies must comply with. The D.C. Circuit in Sierra Club v. Morton (1975) 514 F.2d 856 agreed that CEQ could equivocate its guidelines as legally binding rules that were entitled to great respect and heightened deference.

In 1977, President Carder issued an EO that empowered CEQ to issue “regulations,” as opposed to “guidelines,” which required all federal agencies to comply with CEQ’s NEPA regulations unless doing so would violate federal law. In response, CEQ invoked the EO and “the President’s Constitutional and statutory authority” to issue 92 new regulations, which prescribed uniform standards that were binding on all federal agencies, courts, and NEPA litigants. The framework promulgated by those largely remains in effect today.

CEQ’s NEPA Regulations are Ultra Vires

Based on CEQ’s and NEPA’s historical background, the D.C. Circuit explained that executive agencies, such as the FAA and the NPS, are statutory creatures that have no power to act except to the extent authorized by Congress. Thus, for CEQ’s regulations to be legally binding on those agencies, a nexus must be established between the regulations and some delegation of Congressional legislative authority. In other words, the court must determine whether CEQ, as an executive or independent agency, has statutory authority from Congress to issue its NEPA regulations.

Although CEQ publishes its NEPA regulations in the Code of Federal Regulations, such publication is no measure of the agency’s authority to issue the rules that appear there. Here, NEPA’s provisions provide no support for CEQ’s authority to issue binding regulations. No statutory language states or suggests that Congress empower CEQ to issue rules binding on other agencies—that is, to act as a regulatory, rather than advisory, agency. The court reiterated: “NEPA contains nothing close to the sort of language Congress typically uses to confer rulemaking authority.”

The court also noted that “[n]o statute confers rulemaking authority on CEQ.” The court cited the Environmental Quality Improvement Act of 1970 as an example, which established the Office of Environmental Quality that is headed by the CEQ Chairman. Even as the director of that office, CEQ’s chairman only has the authority to “assist” other federal agencies and may only “promulgate regulations” related to the Office’s funding for research studies and projects.

The court qualified that the Supreme Court’s prior pronouncements on CEQ’s regulations could not rescue them. Although the Court once wrote that those regulations were “entitled to substantial deference,” the statement did not result from the Court’s examination of CEQ’s authority to issue judicially enforceable regulations.

The court further concluded that CEQ’s regulations were not a delegation of the President’s authority under the Constitution’s “Take Care Clause.” While EOs are focused solely on the internal management of the Executive Branch—and thus create no private rights and are not judicially reviewable—NEPA imposes statutory obligations that agencies must execute, which in turn affect private parties who make seek judicial review of those agencies’ actions. The court reasoned: “If all federal agencies are bound by the CEQ regulations and must follow them in carrying out their obligations under NEPA, and if the regulations are enforceable by courts, then those regulations cannot be justified solely as an exercise in a President’s oversight of his Administration.” To this end, the Supreme Court has previously held that the Take Care Clause cannot be used to bypass agencies’ limited status as “creatures of statute” because the Constitution does not permit the President to seize Congress’ lawmaking power by issuing an order that, like a statute, authorizes a government official to promulgate rules and regulations.

Based on these foregoing reasons, the court held that CEQ had no lawful authority to promulgate NEPA regulations that are binding on federal agencies.

– Bridget McDonald

D.C. CIRCUIT COURT OF APPEALS FINDS COUNCIL ON ENVIRONMENTAL QUALITY LACKS AUTHORITY TO ISSUE NEPA REGULATIONS

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In an opinion published on November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir. 2024) 121 F.4th 902, found that the Council on Environmental Quality’s (CEQ’s) regulations implementing the National Environmental Protection Act (NEPA) were ultra vires and thus invalid. The court held that CEQ lacked authority to issue such regulations because its rulemaking authority was tied not to a Congressional act but to a presidential Executive Order.

BACKGROUND

The National Parks Air Tour Management Act of 2000 requires the Federal Aviation Administration (FAA) and the National Park Service (NPS) to develop plans regulating tour flights over national parks throughout the United States. Pursuant to the Act, the FAA and NPS issued an Air Tour Management Plan governing tourist flights over four Bay Area, California national parks: the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore. The Agencies determined that they did not need to prepare an environmental analysis under NEPA because the Plan, as compared to what currently existed, would cause little to no additional environmental impacts.

THE COURT OF APPEALS’ OPINION

Several environmental organizations and one area resident petitioned for review of the Plan, arguing that the Agencies violated NEPA and the CEQ’s NEPA regulations. Petitioners argued that the Agencies violated CEQ’s regulations by foregoing an environmental assessment; the Agencies denied the claim and defended their action by invoking the same regulations.

The D.C. Circuit declined to address the merits of these arguments and instead independently held that CEQ’s regulations—which purport to govern how all federal agencies must comply with NEPA—are ultra vires and thus invalid.

Historical Legal Background

The CEQ traces its rulemaking authority not to a legislative act, but to a presidential Executive Order (EO). But because an EO is neither legally binding nor has the force of law, CEQ’s authority to issue regulations raises a separation of powers issue.  NEPA, on the other hand, is a legislative act that Congress adopted in 1969, which requires each federal agency to issue a detailed statement addressing the environmental impact of any proposed major federal action that significantly affects the quality of the human environment. All federal agencies must develop procedures that implement NEPA. The Act also created the CEQ within the Executive Office of the President, to be run by three presidentially appointed Commissioners who are confirmed by the Senate. CEQ’s job is to “review and appraise” agencies’ compliance with NEPA, make recommendations to the President with respect thereto, and develop and recommend to the President national policies to foster and promote the improvement of environmental quality.

In 1970, President Nixon issued an EO instructing CEQ to issue guidelines on how federal agencies should prepare the detailed environmental analyses NEPA required. CEQ subsequently published a memorandum with guidelines for federal agencies to consider when considering or preparing environmental impact statements. At the time, several courts regarded CEQ’s role as “merely advisory” because it lacked authority to prescribe regulations that governed or mandated compliance with NEPA. CEQ, however, held a different view, and considered its NEPA guidelines to be mandatory non-discretionary standards that federal agencies must comply with. The D.C. Circuit in Sierra Club v. Morton (1975) 514 F.2d 856 agreed that CEQ could equivocate its guidelines as legally binding rules that were entitled to great respect and heightened deference.

In 1977, President Carder issued an EO that empowered CEQ to issue “regulations,” as opposed to “guidelines,” which required all federal agencies to comply with CEQ’s NEPA regulations unless doing so would violate federal law. In response, CEQ invoked the EO and “the President’s Constitutional and statutory authority” to issue 92 new regulations, which prescribed uniform standards that were binding on all federal agencies, courts, and NEPA litigants. The framework promulgated by those largely remains in effect today.

CEQ’s NEPA Regulations are Ultra Vires

Based on CEQ’s and NEPA’s historical background, the D.C. Circuit explained that executive agencies, such as the FAA and the NPS, are statutory creatures that have no power to act except to the extent authorized by Congress. Thus, for CEQ’s regulations to be legally binding on those agencies, a nexus must be established between the regulations and some delegation of Congressional legislative authority. In other words, the court must determine whether CEQ, as an executive or independent agency, has statutory authority from Congress to issue its NEPA regulations.

Although CEQ publishes its NEPA regulations in the Code of Federal Regulations, such publication is no measure of the agency’s authority to issue the rules that appear there. Here, NEPA’s provisions provide no support for CEQ’s authority to issue binding regulations. No statutory language states or suggests that Congress empower CEQ to issue rules binding on other agencies—that is, to act as a regulatory, rather than advisory, agency. The court reiterated: “NEPA contains nothing close to the sort of language Congress typically uses to confer rulemaking authority.”

The court also noted that “[n]o statute confers rulemaking authority on CEQ.” The court cited the Environmental Quality Improvement Act of 1970 as an example, which established the Office of Environmental Quality that is headed by the CEQ Chairman. Even as the director of that office, CEQ’s chairman only has the authority to “assist” other federal agencies and may only “promulgate regulations” related to the Office’s funding for research studies and projects.

The court qualified that the Supreme Court’s prior pronouncements on CEQ’s regulations could not rescue them. Although the Court once wrote that those regulations were “entitled to substantial deference,” the statement did not result from the Court’s examination of CEQ’s authority to issue judicially enforceable regulations.

The court further concluded that CEQ’s regulations were not a delegation of the President’s authority under the Constitution’s “Take Care Clause.” While EOs are focused solely on the internal management of the Executive Branch—and thus create no private rights and are not judicially reviewable—NEPA imposes statutory obligations that agencies must execute, which in turn affect private parties who make seek judicial review of those agencies’ actions. The court reasoned: “If all federal agencies are bound by the CEQ regulations and must follow them in carrying out their obligations under NEPA, and if the regulations are enforceable by courts, then those regulations cannot be justified solely as an exercise in a President’s oversight of his Administration.” To this end, the Supreme Court has previously held that the Take Care Clause cannot be used to bypass agencies’ limited status as “creatures of statute” because the Constitution does not permit the President to seize Congress’ lawmaking power by issuing an order that, like a statute, authorizes a government official to promulgate rules and regulations.

Based on these foregoing reasons, the court held that CEQ had no lawful authority to promulgate NEPA regulations that are binding on federal agencies.

– Bridget McDonald

California Supreme Court Holds that CEQA is Not Preempted by the Federal Power Act When Used to Make Decisions that are Outside Federal Jurisdiction or Compatible with the Federal Government’s Licensing Authority

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In County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, the California Supreme Court partially reversed an opinion from the Third District Court of Appeal that CEQA is completely preempted by the Federal Power Act (FPA), finding instead that CEQA is only partly preempted. Specifically, the Supreme Court held the FPA preempts an agency’s application of CEQA to the extent that it interferes with the federally established licensing process, but not when CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority.

Background

This consolidated litigation addresses a license renewal for the Oroville Facilities, a collection of public works projects, including hydroelectric facilities, in Butte County. As part of the renewal process, the California Department of Water Resources (DWR) engaged the alternative licensing process (ALP) authorized by the Federal Energy Regulatory Commission (FERC) prior to applying for relicensing. The ALP process allowed DWR to engage with stakeholders and develop a settlement agreement addressing their concerns, which effectively functions as a first draft of the FERC license. Following five years of negotiations, all but two of the stakeholders signed on to the settlement agreement, which DWR submitted to FERC. The Counties of Butte and Plumas did not sign the agreement. Following submission of the settlement agreement and licensing application by DWR, FERC prepared an Environmental Impact Statement (EIS) pursuant to NEPA, which considered several alternatives, including a “staff alternative” with modifications from the FERC staff. The EIS concluded the “staff alternative” was the preferred alternative.

Also following submittal of the relicensing application, DWR prepared an EIR pursuant to CEQA, analyzing implementation of the settlement agreement and continued operation of the Oroville Facilities as the “project” under CEQA and the same alternatives considered by FERC. DWR prepared the EIR to comply with additional permitting requirements under the Clean Water Act, for which the State Water Resources Control Board was the lead agency, and to help DWR determine whether to accept a license containing the original terms or the “staff alternative.”

Procedural History

Butte County and Plumas County separately filed petitions for writ of mandate, each challenging DWR’s compliance with CEQA in connection with the relicensing of Oroville Facilities. The cases were later consolidated.

The trial court found DWR’s EIR adequate, and the Counties appealed. On appeal, the Third District declined to reach the merits of the case, holding that the Counties’ CEQA claims were entirely preempted by the FPA, the purpose of which is to “facilitate the development of the nation’s hydropower resources” by centralizing regulatory authority over dams, reservoirs, and hydroelectric power plants in the federal government. The California Supreme Court granted the Counties’ petition for review but subsequently transferred the matter back to the Court of Appeal for reconsideration in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (Friends), which held that the Interstate Commerce Commission Termination Act (ICCTA) does not necessarily preempt a State agency’ compliance with CEQA for a new railroad project, and that State, as a railroad operator, could voluntarily subject itself to compliance with CEQA without conflicting with the ICCTA. On remand, the Third District affirmed its earlier holding that CEQA was preempted by the FPA.

The California Supreme Court again granted the Counties’ petition for review to determine whether the FPA preempts CEQA when the state is acting on its own behalf and exercising discretion in relicensing a hydroelectric dam.

The California Supreme Court’s Decision on Preemption

A five justice majority of the California Supreme Court held that CEQA claims are preempted insofar as they conflict with the FPA’s licensing scheme, but not where CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority. Specifically, the court determined that any CEQA challenge to the ALP and the terms of the settlement agreement and license being considered by FERC were preempted by the FPA. However, because DWR’s compliance with CEQA was not limited to the FERC relicensing, the Counties’ broader challenges to the adequacy of DWR’s EIR were not preempted. The Court concluded that DWR could use the environmental conclusions reached through the CEQA process to aid its decision whether to accept FERC’s “staff alternative” or request modification to the terms of the license issued by FERC, which the FPA allows.

The Court discussed the federal and state law principles applicable to the case before it, including the presumption against preemption for a state-owned, or state-operated project. The FPA does not include an “express” preemption clause, so the issue was whether “conflict” or “field” preemption applied. The Court concluded that the distinction between the two types of preemption was not meaningful here, particularly considering the presumption that, absent a clear statement of Congressional intent that state regulation is preempted, federal law will not be interpreted as interfering with state-owned or state-operated projects. The Court also found federal caselaw applying “field” preemption to state regulatory schemes related to the FPA distinguishable because those cases addressed state attempts to regulate private actors seeking licensing under the FPA. The Court stated that CEQA, in the context of a state agency applying for a federal license, constitutes “self-governance” rather than traditional state regulation of private actors that has been held preempted in the past.

The Court acknowledged that state courts could not require a CEQA remedy inconsistent with federal law, including the FPA, but noted that the Counties had dropped their previous request to enjoin FERC’s licensing process pending DWR’s compliance with CEQA. The Court reasoned, however, that DWR’s compliance with both CEQA and the FPA was possible without creating any conflict. Specifically, DWR used CEQA analysis, in part, to determine whether it should accept a license from FERC containing the proposed terms or those modified by FERC staff. Similarly, the FPA allows applicants to amend their licensing applications or request that FERC modify the terms of the license. DWR could thus use the environmental conclusions reached in the CEQA process to make its own decisions and then make appropriate requests to FERC without intruding on FERC’s jurisdiction. Just as FERC was not required to issue a license wholly consistent with the terms of the settlement agreement, FERC retained jurisdiction to consider, but in no way be bound by, any subsequent requests from DWR. For these reason, environmental review at both levels of government did not overlap to invoke conflict preemption.

The Court also concluded that any preemption issues related to DWR’s adoption of specific mitigation measures demanded by the Counties were premature, as no court had ruled that any additional mitigation was required. The question before the Court was whether any CEQA challenge to DWR’s EIR was preempted by the FPA, the Court ruled such a challenge, in the abstract, was not inherently preempted. Additionally, the Court noted that it may be possible for DWR to adopt mitigation measures that are either outside of FERC’s jurisdiction or compatible with FERC’s licensing authority. Again, FERC could simply deny any request from DWR that conflicted with the FPA or FERC’s licensing authority.

In sum, where the Counties’ CEQA challenges seek to undermine a FERC license or associated terms, they are preempted by the federal government’s exclusive licensing authority under the FPA. However, Counties’ CEQA claims which implicate the sufficiency of an EIR to inform state self-governance and decision-making are not preempted.

The Concurring and Dissenting Opinion

Notably, the Chief Justice, and author of the Friends decision, filed a concurring and dissenting opinion. The Chief Justice agreed that any CEQA challenge to FERC’s licensing process including the settlement agreement was preempted but disagreed that broader CEQA challenges were not similarly preempted. The dissent reasoned that, in addition to “field” and “conflict” preemption, state law that constitutes an “obstacle” to the purposes and objectives of federal law would be similarly preempted. Here, given the history of federal caselaw concluding that state regulation of hydroelectric facilities is preempted by the FPA, and the express “savings clause” in the FPA reserving regulation of water rights to the states, the Chief Justice concluded that CEQA is an “obstacle” to the objectives and purpose of the FPA, particularly where the FPA licensing process included multiple equivalents of CEQA through the ALP and FERC’s compliance with NEPA and does not contemplate delays caused by state court review of CEQA compliance.

The dissent also concluded that CEQA was subject to “field” preemption because CEQA did not involve state regulation of water rights. The Chief Justice also noted that, while none of the federal FPA preemption cases addressed state-operated projects, the concept of “field” preemption (i.e., where Congress truly intends to “occupy the field”) is broad enough to preempt all state regulation, regardless of who the operator is.

Turning to Friends, the Chief Justice characterized her decision in that case as concluding that CEQA is exempt from preemption under the ICCTA as an example of “self-governance” by the State. Given the purpose of the ICCTA was to deregulate railroads, and thereby allow greater “self-governance” by railroad operators, the State’s voluntary compliance with CEQA was not preempted. In contrast, the dissent concluded that the FPA’s purpose and objectives is to vest exclusive regulation of hydroelectric facilities in FERC and to exclude all state regulation, with the exception of water rights. The Chief Justice concluded that, unlike the ICCTA, the FPA (including the federal caselaw interpreting the FPA) made it “unmistakably clear” that all state regulation of hydroelectricity facilities, except regulation of water rights, is preempted.

Lastly, the dissent concluded that finding CEQA only partially preempted was unworkable because a ruling that DWR’s CEQA compliance deficient would not impact FERC’s decision on whether to issue the license. Forcing DWR to perform additional analysis or consider additional mitigation or alternatives would be an exercise in generating paper, without any practical effect. As the Majority Opinion acknowledges, FERC has complete discretion to deny any request to alter the terms of the license, regardless of whether DWR believes such changes to be necessary to comply with CEQA. The dissent also found that requiring CEQA compliance in this case, where multiple environmental studies have been prepared for FERC’s consideration during the licensing process, would be redundant and have little practical benefit.

By Jordan Wright and Nathan George

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

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The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

The Council on Environmental Quality Finalizes Guidance Directing Agencies to Consider Climate Change and Greenhouse Gas Emissions in NEPA Reviews

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The Council on Environmental Quality (“CEQ”) released final guidance providing a framework for federal agencies to quantify greenhouse gas (“GHG”) emissions for projects subject to the National Environmental Policy Act (“NEPA”). When addressing climate change, agencies should consider both the potential effects of a proposed action on climate change as well as the effects of climate change on a proposed action and its environmental impacts.

CEQ recommends using projected GHG emissions as a proxy to quantify impacts—along with providing a qualitative discussion of the relationship between GHG emissions and climate change—to assist federal agencies in making “a reasoned choice among alternatives and mitigation actions.” Both direct and indirect effects should be analyzed in comparison to the no-action alternative—amounting to cumulative effects analysis. The guidance expressly provides that a separate cumulative effects analysis for GHG emissions is not necessary. The preference is for a quantitative analysis of GHG emissions based on available tools and information. Where agencies do not quantify projected GHG emissions, a qualitative analysis should be included along with an explanation of why quantification was not reasonably available. Simply stating that the proposed project represents only a small fraction of GHG emissions globally is insufficient. Finally, proposed mitigation of GHG emissions should be evaluated to ensure they are “verifiable, durable, enforceable, and will be implemented.”

In analyzing how climate change will affect a proposed project, CEQ does not expect agencies to undertake original research or analysis; rather the expectation is that agencies will rely on existing, relevant scientific literature, incorporating such research by reference into an environmental document. Accounting for climate change during the planning process allows agencies to consider a project’s vulnerability to climate change, in addition to particular impacts of climate change on vulnerable communities, allowing agencies to explore opportunities to increase a project’s resilience to climate change as part of the initial design.

Overall, CEQ would have agencies treat the analysis of GHG emissions and climate change like any other environmental impact under NEPA. The guidance acknowledges that the “rule of reason” and proportionality play a role in determining the extent of analysis, which should be commensurate with the quantity of projected GHG emissions “as it would not be consistent with the rule of reason to require the preparation of an EIS for every federal action that may cause GHG emissions regardless of the magnitude of those emissions.”

This guidance does not carry the force and effect of law. Nevertheless, it does provide a common approach to be used by federal agencies in analyzing climate change, and is bound to be persuasive in determining whether an EIS adequately addresses climate change impacts.

Ninth Circuit Upholds EIS for Southern California Delivery of Colorado River Water

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The Imperial County Air Pollution Control District and the County of Imperial challenged the United States Department of the Interior’s Environmental Impact Statement analyzing the effects of water transfer agreements on the Salton Sea and in southern California. The court held that the Department did not violate NEPA or the Clean Air Act. The case is People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Department of the Interior (May 19, 2014) 14 C.D.O.S. 5454.

History

The Salton Sea’s access to Colorado River water—the Sea’s only water supply— is in jeopardy. In 1922, states in the Colorado River basin agreed to divide the river’s water among the upper- and lower-basin states. In 1931, southern California irrigation and water districts agreed to a framework for distributing the state’s share of the river water, which assumed a perpetual surplus of the water. In 1963, the Supreme Court held in Arizona v. California that California’s Colorado River allotment was limited to 4.4 million acre-feet per year, and that the state could only exceed this limit if other lower-basin states did not use their allotments or there was a surplus of water. In 1999, several water districts negotiated Quantification Settlement Agreements to reduce Colorado River water usage.

In 2001, the Secretary of the Interior announced that she would prepare an Implementation Agreement EIS to consider the consequences of delivering a portion of Imperial Irrigation water at different diversion points on the Colorado River for use outside of the Imperial Valley. The Final EIS (“FEIS”) discussed on-river environmental impacts of altering Colorado River delivery diversion points, indirect effects of changing the amount of water received by the California districts, and potential mitigation measures to reduce off-river ecological consequences. In 2003, the Secretary evaluated minor modifications to the proposed master implementation agreement, the Colorado River Water Delivery Agreement. She determined a supplemental EIS was unnecessary and issued a final record of decision. Plaintiffs sued and the district court granted summary judgment to the defendants, holding that plaintiffs lacked standing and, alternatively, rejecting their NEPA claims on the merits.

Ninth Circuit Decision

The Ninth Circuit Court of Appeal held that plaintiffs had established Article III standing, and thus moved on to plaintiffs’ substantive arguments. In assessing plaintiffs’ NEPA claims, the court first considered whether the Secretary had taken a “hard look” at the environmental consequences of the proposed action and reasonably evaluated the relevant facts.

Plaintiffs argued that the Implementation EIS either did not clarify whether it incorporated the state Transfer Environmental Impact Report or the Federal Transfer EIS, or improperly cited to a non-NEPA document—the Transfer EIR. The court determined that plaintiffs’ assertion that the FEIS cited to the separate CEQA and NEPA reviews as if they were a single document was “fly-specking,” and the court stated it would not let a minor misstatement prejudice its review. The court also found harmless a reference to a document as “tiered to and incorporated” when the analysis should have only said “incorporated.” The court further held that the Secretary did not act arbitrarily by separately preparing a Transfer EIS and an Implementation Agreement EIS, since the project could be properly segmented in that manner under the independent utility test.

The court held that the Secretary did not abuse her discretion in concluding that a supplemental EIS was unnecessary. The changes contained in the FEIS: (1) were qualitatively considered through a no-mitigation alternative; (2) were a secondary aspect of the EIS; (3) reduced overall an adverse environmental impact; and (4) did not alter the project’s cost-benefit analysis. Additionally, the FEIS and the record of decision sufficiently considered potential mitigation measures.

The court also held that the decision to discuss only one alternative—no action—was not arbitrary and capricious. NEPA does not require discussion of a minimum number of alternatives; the number depends on the stated goal of the project. The FEIS compared the project to only one alternative because the project was a negotiated agreement. Discussing a hypothetical alternative that no one had agreed to or would likely agree to, the court reasoned, would have been unhelpful.

The court also found the EIS sufficiently discussed air quality, reclamation, and growth-inducing impacts.

Finally, the court addressed plaintiffs’ Clean Air Act claims. The court noted that neither federal nor state conformity rules (which prohibit the authorization of activities that do not conform with an approved implementation plan) identify the form an agency must use when deciding whether a project necessitates a full-scale conformity determination. Here, the Secretary announced her decision that a conformity determination was unnecessary in the FEIS. The court stated that an agency need not prepare a stand-alone document explaining that decision. Furthermore, the Secretary did not abuse her discretion by concluding that Interior Department actions would not directly cause PM10 emissions. The project only committed the Secretary to changing the delivery point of Colorado River Water; any actions would occur at dams far from those diversion points.

The court affirmed the judgment of the district court.

Ninth Circuit Issues Injunction for Oregon Logging Project

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League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.

Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA).  The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor.  But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.

Likelihood of Success on the Merits

The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits.  The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place.  The plan, however, was subsequently withdrawn.  The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan.  An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.

Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis.  The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate.  Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region.  The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline.  The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.

Likelihood of Irreparable Harm

The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction.  The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable.  The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm.  The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged.  There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.

Balance of Equities

Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor.  The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary.  The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”

Interest to the Public

The final prong in the test for a preliminary injunction is whether the injunction is in the public interest.  The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned.  The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks.  Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest.  The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.

The Ninth Circuit remanded the case to the district court to issue the preliminary injunction.  The court expressly declined to comment on the appropriate scope of that injunction.

Ninth Circuit Court of Appeals Rejects NEPA Challenge to High-Speed Rail Project in Hawaii

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HonoluluTraffic.com v. Federal Transit Administration (9th Cir. 2014) __F.3d __ (Case No. 13-15277)

The litigation involved a challenge to a 20-mile, high-speed rail project that would traverse from the western portion of Oahu through the downtown area of Honolulu, Hawaii. After considering various long-range alternatives for federally funded transportation projects, the city of Honolulu ultimately focused on a “Fixed Guideway” public transport system for the project. The project was designed to improve transportation and relieve traffic congestion in Honolulu – a persistent problem and controversial topic in Hawaii and on the island of Oahu in particular.  According to the Ninth Circuit’s opinion, Honolulu is the second-most congested metropolitan area in the nation.

Plaintiffs were a consortium of interest groups and individuals opposing the project. They filed the action in 2011 against FTA, the U.S. Department of Transportation, the city and county of Honolulu, and various federal and local administrators. Plaintiffs raised challenges under the NEPA and other federal laws.  The district court granted summary judgment to the defendants on the NEPA claims and the Ninth Circuit affirmed.

Plaintiffs’ challenges under NEPA were directed principally at the choice of the steel-wheel-on-steel-rail Fixed Guideway system for the project.  Plaintiffs claimed that the defendants unreasonably restricted the project’s purpose and need and did not consider all reasonable alternatives as required under NEPA and its regulations.

The court first addressed Plaintiffs’ argument that the project objectives stated in the EIS were too narrow. Plaintiffs argued that the objectives were so narrowly defined that only one alternative would accomplish them, and therefore, there was no real consideration of alternatives.  The Ninth Circuit disagreed.  The court noted that the project objectives, as stated as the purpose and need statement in the EIS, were defined in accordance with the statutorily mandated transportation plan that preceded the EIS – the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”).  The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified the Fixed Guideway system as a central component of that plan.  The court held that, viewed in its statutory context, the project’s objectives were not so narrowly defined that only one alternative would accomplish them.  The statement of purpose and need was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project.  The Ninth Circuit, therefore, agreed with the district court’s conclusion that “because the statement of purpose and need did not foreclose all alternatives, and because it was shared by federal legislative purposes, it was reasonable.”

The court next addressed Plaintiffs’ claim that the EIS did not properly consider all reasonable alternatives and should have considered alternatives that the state had earlier rejected.  Early in the process, the city had prepared an Alternatives Assessment (AA) to narrow the various alternatives that would be included in the EIS.  The Ninth Circuit noted that an AA may be used as part of the NEPA process as long as it meets certain requirements. Because those requirements were satisfied, the court found no problem with the AA.  The court also noted that alternatives that were previously rejected by an agency in prior studies do not need to be discussed in an EIS.  According to the court, Plaintiffs’ real quarrel was not with the use of an AA generally, but rather that the process failed to consider Plaintiffs’ proposed three-lane Managed Lanes Alternative (a new roadway for busses and other high-occupancy vehicles).  A similar alternative, however, had been considered and rejected in the AA for cost reasons.  The court determined that the cost analysis in the AA was reasonable and that the three-lane Managed Lanes Alternative would be even more costly than the alternative rejected in the AA.  Therefore, the court held that three-lane Managed Lanes Alternative did not need to be included in the EIS.

Plaintiffs’ final argument was that the defendants had improperly excluded a light-rail alternative from the EIS.  The court determined, however, that the defendants properly relied on the AA to reject alternatives including light-rail.  Ultimately, the court held that the EIS’s identification of project objectives and analysis of alternatives satisfied NEPA’s requirements.

NEPA/CEQA Project Integration Handbook Available for Public Comment

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The Governor’s Office of Planning and Research (OPR) and the White House Council on Environmental Quality (CEQ) are soliciting input on the public review draft of “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” The handbook strives to improve efficiency, transparency and coordination in the joint environmental review process, in order for federal and state agencies to continue to pursue shared goals and to meet the requirements of both statutes. This draft handbook identifies key similarities and differences between the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) and provides suggestions to assist agencies, project applicants, and members of the public in identifying early on the potential coordination challenges that may arise during the environmental review process and in enhancing effective participation in review. Developing a common understanding of the NEPA and CEQA review processes and their differences at the beginning of a joint review process will assist agencies in avoiding delay. The draft handbook also provides a framework for a memorandum of understanding (MOU) between two or more agencies entering into a joint NEPA/ CEQA review process. Finally, the handbook summarizes and compares NEPA with the California Energy Commission’s licensing process.

The draft is open for public comment until April 19, 2013 at 5:00 p.m. Eastern Time.

The draft handbook identifies specific opportunities for coordinating NEPA and CEQA review and states the following goals:

  • Encourage federal agencies to choose one lead agency to work with a CEQA co-lead agency;
  • Encourage federal and California agencies to conduct public hearings, public comment periods, and final review periods jointly where possible;
  • Recommend that federal and California agencies develop a joint public review timeline that incorporates the applicable public participation requirements under both statutes;
  • Suggest that federal and California agencies preparing a joint EIS/EIR include a section in each impact analysis that makes a CEQA significance determination; and
  • Recommend that agencies preparing a joint EIS/EIR select a range of alternatives broad enough to meet CEQA requirements and discuss them at a level of detail that would meet NEPA requirements. 

The draft handbook also includes information for agencies planning to enter into a MOU to guide a joint NEPA/CEQA process. A MOU can define the roles of each agency and establish the framework of the environmental review. The draft handbook suggests that MOUs be used to address issues such as which agency will communicate with the applicant, allocating the responsibility for reviewing and responding to public comments, and determining the applicable time frames and milestones. MOUs can also define how the agencies will resolve disagreements. 

The draft NEPA/CEQA handbook is a comprehensive project planning resource for agencies and proponents of projects in California that require federal approval. 

The Handbook is available here: http://opr.ca.gov/docs/NEPACEQAHandbookMarch2013.pdf

Comments may be submitted here: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit