Judicial Review Under
NEPA
Bob Malmsheimer
April 1, 2006
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An Overview
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Introduction
Prerequisites for Litigation
Judicial Review
Remedies
Questions
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Introduction:
The Parties
 Plaintiff:
 The party commencing a civil lawsuit, who alleges
that she was injured by the agency’s actions.
 Most NEPA plaintiffs are public interest organizations
and citizen groups.
 Defendant:
 The party against whom a legal action is brought in
civil court: always at least one federal agency.
 NEPA always involves civil court litigation.
 Generally natural resource agencies: DOA, DOI, ACE,
but also DOT. DOJ (ENR Division) defends lawsuits.
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Introduction:
Types of NEPA Litigation
 Whether an agency properly applied a categorical
exclusion.
 Whether an agency properly decided not to
prepare an EIS (or Supplemental EIS).
 Whether the EIS was adequate.
 Note: U.S. Supreme Court has held that NEPA is a
procedural, not a substantive, statute.
 Question is “Did the agency follow the proper NEPA
procedures?”
 NOT: “Did the agency choose an environmentally
sound alternative?”
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Prerequisites for Litigation:
Introduction
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Plaintiffs must overcome numerous
requirements to win a NEPA case:
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Plaintiffs must meet jurisdictional
requirement before a court can review an
agency’s decision.
In court, plaintiffs must prove agency action
violated NEPA.
Even if plaintiffs prevail, their remedies
are very limited.
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Prerequisites for Litigation:
Cause of Action
 Plaintiff must have a legal basis for their cause of
action.
 NEPA contains no enforcement provisions.
 Administrative Procedure Act
 Courts use the APA as legal basis for judicial review of
federal agency compliance with NEPA.
 NEPA litigation usually involves “informal” agency
actions. Exception: judicial review of proposed CEQ
regulations.
 APA Section 702: “a person suffering legal wrong
because of agency action, or adversely affected by
agency action within the meaning of the relevant
statute” has a cause of action.
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Prerequisites for Litigation:
Venue
 The Federal Court System
 U.S. Supreme Court (1)
 (Primarily appellate jurisdiction)
 U.S. Courts of Appeals (13)
 (Primarily appellate jurisdiction)
 U.S. District Courts (94)
 (Primarily original jurisdiction – trial courts)
 Generally NEPA litigation occurs in the U.S.
District Court where proposed action is located or
in U.S. District Court for the District of Columbia.
 But some statutes specify U.S. Court of Appeals.
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Prerequisites for Litigation:
Standing
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Must be a connection between the
plaintiff and the lawsuit.
Individual Plaintiffs must show:
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Injury-in-fact: Plaintiff must suffered an
injury-in-fact (Sierra Club v. Morton).
Causation: The cause of plaintiff’s injury must
be directly related to defendant’s behavior.
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Prerequisites for Litigation:
Standing (Con’t)
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Redressibility: The injury would be
remediated if the plaintiff got what she
wanted (i.e., if her lawsuit prevailed).
Zone of Interest (APA §706): Plaintiff is in the
zone of interest protected by the statute.
Association plaintiffs must show:
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One of its members would have standing to
bring the action (see above), and
The lawsuit relates to the purposes of the
organization.
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Prerequisites for Litigation:
Other Issues
 Must exhaustion administrative remedies
 Plaintiff must go through all administrative procedures
before she can appeal to U.S. District Court.
 Controversy must be ripe
 Courts will not interfere in NEPA process until Final EIS
(and ROD), FONSI, or “irreparable injury” will occur.
 Controversy must not be moot
 Controversy no longer exists because action completed.
 Common Law Doctrine of Laches does not apply.
 Plaintiff unreasonably delays initiating lawsuit.
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Judicial Review:
Standard of Review
 Many standards of review.
 But most courts examine whether the agency’s
decision was:
 “Arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law,” or
 “Without observance of procedure required by law” (5
USC §706(2)).
 Courts review the Administrative Record (ROD).
 Studies, data, documents used to make NEPA decision.
 Courts rarely consider other evidence.
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Judicial Review:
Deference to Agencies
 U.S. Supreme Court: Courts should defer to
agencies’ decisions.
 Progressive ideas about agencies.
 Chervon v. NRDC
 Courts should defer to agency decisions unless:
 Agency violated Congress’ clear intent, or
 Agency’s decision was arbitrary and capricious.
 Vermont Yankee
 Judges should not substitute their decisions for
permissible agency decisions.
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Judicial Review:
How Often Do Agencies Win?
 The U.S. Supreme Court has supported the
federal agency in EVERY NEPA case it has
heard.
 Agencies are more successful in U.S. Courts
of Appeals and U.S. District Courts.
 All of the important early NEPA decisions were
in the U.S. Courts of Appeals.
 But note: Published cases v. unpublished cases.
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Remedies:
An Injunction
 Courts do not award money damages in NEPA
cases.
 But Note: Equal Access to Justice Act.
 If plaintiff wins, court declares agency’s NEPA
obligations.
 Courts instruct agencies what to do.
 Courts sometimes issue preliminary injunctions.
 Note: In 1970s, some courts awarded permanent
injunctions, but U.S. Supreme Court later declared
NEPA a procedural statute.
 So why would a plaintiff file a NEPA lawsuit?
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Questions?
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