Chapter 8: Environmental Impact Assessment

WHAT “EFFECTS” MUST BE CONSIDERED – CLIMATE CHANGE (pp. 831-38)

In Center for Biological Diversity v. NHTSA, 508 F.3d 508 (9^th Cir. 2007), the Ninth Circuit ruled that the National Highway Transportation Safety Administration (NHTSA) violated NEPA when it failed to prepare an environmental impact statement (EIS) assessing the impacts of carbon dioxide emissions from motor vehicles on climate change when it made modest revisions to fuel efficiency standards (Corporate Average Fuel Economy, or CAFÉ, standards).  The court distinguished Department of Transportation v. Public Citizen (p. 832) by noting that while DOT had no authority to control the action allegedly having significant effects on the environment, NHTSA had direct authority to regulate fuel economy.  The Ninth Circuit ordered NHTSA to prepare an EIS assessing the environmental effects of carbon dioxide emissions on climate change.

NEPA, NATIONAL SECURITY AND “EMERGENCIES”: THE WINTER CASE

On February 29, 2008, the Ninth Circuit decided Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658 (9^th Cir. 2008).  When the decision was issued, Professor Percival was teaching Environmental Law in Beijing as a Fulbright scholar at the China University of Political Science and Law during the spring semester 2008.  No other decision so impressed the Chinese students with how powerful an independent judiciary in the United States can be.  The notion that a federal court, acting at the behest of a public interest environmental NGO, could use environmental law to prohibit the U.S. military from conducting certain sonar testing exercises, despite President Bush’s effort to invoke a “national security” exemption, was wonderfully astonishing to the Chinese. 

The case involved efforts by the U.S. Navy to prevent a federal court form limiting its use of high-intensity, mid-frequency active (MFA) sonar in military training exercises.  NRDC and other environmental groups sued the Navy claiming that unrestricted use of such sonar would cause serious harm to various species of marine mammals in southern California waters in violation of NEPA and the Coastal Zone Management Act (CZMA).  Finding that the environmental groups were likely to succeed on the merits, a federal district judge issued an injunction restricting use of the sonar. 

In response to the court’s order, President Bush exempted the Navy’s training exercises from the CZMA pursuant to 16 U.S.C. 1456(c)(1)(B).  The Council on Environmental Quality (CEQ) then purported to approve “alternate arrangements” to excuse the Navy’s failure to complete an environmental impact statement (EIS) under NEPA.  While criticizing the President’s action as a potentially unconstitutional attempt to dictate the outcome of litigation, the district court declined to reach the CZMA issue, but sustained its injunction solely on the basis of the likely NEPA violation. The Navy then filed an emergency motion asking the Ninth Circuit to vacate the injunction.   

In an opinion authored by Judge Betty Fletcher, the Ninth Circuit held that the Navy’s need to continue long-planned, routine training exercises without restriction did not constitute “emergency circumstances” within the meaning of 40 C.F.R. 1506.11. This regulation states that “[w]hen emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions” of NEPA, the agency should consult with CEQ “about alternative arrangements” and “limit such arrangements to actions necessary to control the immediate impacts of the emergency.”  The Navy has obtained Supreme Court review of the Ninth Circuit’s decision. The case will be argued before the Supreme Court on October 8, 2008.

On August 12, 2008, NRDC and the Navy reached a comprehensive settlement agreement concerning limits on the Navy’s use of low frequency active (LFA) sonar.  The agreement was spawned by an injunction issued at NRDC’s behest in a different case from the one that will be heard by the U.S. Supreme Court.  NRDC is hailing the agreement as proof that national security and environmental protection are entirely compatible goals. 

According to an NRDC press release:

            “Under the agreement, LFA testing and training is limited to defined areas     of the North Pacific Ocean, and the Navy must adhere to other protective      measures, including seasonal and coastal exclusions that will protect    breeding grounds and other important whale habitat. In Hawaii, for example, LFA training cannot occur near the Hawaii Humpback Whale    National Marine Sanctuary or the Papahanaumokuakea Marine National  Monument, and is limited to waters beyond 50 nautical miles of the main    islands, an area known to contain vital habitat for several unique marine  mammal populations.

NRDC, “Agreement Limits Navy’s Use of Low-Frequency Active Sonar,” Aug. 12, 2008 Press Release.

The agreement was the product of a successful NRDC lawsuit claiming that a permit issued to the Navy by the National Marine Fisheries Service violated the Marine Mammal Protection Act and the National Environmental Policy Act. In 2002 NRDC had persuaded the same court that a prior permit issued to the Navy also was unlawful because it failed to require adequate mitigation measures to protect marine life. A copy of the settlement agreement is available at: http://docs.nrdc.org/water/wat_08081201A.pdf