NEPA NEPA and Sustainability NEPA s approach o Require the environment to be considered Does this approach further sustainability What is the judicial role KEYSTONE PIPLINE Is an EIS required Who prepares the EIS o The state department Opinions About NEPA o State department has to issue a permit because it crosses country border Since it is a federal agency it is require to do an EIS Viewed as a game changer at the time Launched the Environmental Decade OTHERS Costly Pointless paper shuffling requirements o Just more red tape o Don t need to chose the best option Became an international model NEPA requires EISs fatal flaw o It requires little else and therein lies both its singular genius and its General Not command and control rather a process for federal agency decisions making EIS for major federal actions significantly affecting quality of the human environment o Cool analysis o Environmental impact o Alternatives CALVERT CLIFFS Coordinating Committee vs US AEC Howard County MD DO READINGS NEPA creates judicially enforceable duties ad mandates a certain decision Role of citizen s groups and courts making process EISs must be consider not merely written and pil in a file Must consider impacts at every stage of the decision making process Procedural duties of NEPA are not flexible o Fullest extent possible Cumulative impacts o Need to do NEPA even if comply with the CWA or CAA o Doesn t excuse you from NEPA LEGACY o Role of courts in mandating compliance with procedural requirements of NEPA o Cause of action for environmental groups o Contributed to decline in nuclear power nationally Although not at CC o Increased transparency and participation o Change in decisions making Strycker s Bay v Karlen Triumph of process over substance Procedural duties not substantive duties Does not mandate substantive results or require that environment get Only role for the court is to be sure that the agency considered the environment determinative weight in all stages of decision making May not change project outcome but NEPA review may result in delay or abandonment of project DISSENT o hard look o cannot accept unreasonable agency actions delay over environmental concerns is unreasonable Legacy of NEPA The formulation of affirmative environmental policies the original purpose for enacting the statute has become increasingly divorced from the EIS process Tarylock The Story of Calvert Cliffs When is an EIS required Major federal action significantly affecting the quality of the environment MAJOR FEDERAL ACTION o Actions with effect that may be major and which are potentially subject to federal control and responsibility o Includes private projects that require federal approval Doesn t mean that individuals have to apply ONLY AGAINST THE FEDERAL AGENCY ISSUING A PERMIT SIGNIFICANCE o Context and Intensity Major Federal Action Adoption of rules regulations and interpretation Adoption of plans that guide use of federal resources Adoption of programs that government is funding or carrying out to implement a specific policy Approval of construction projects Case Study Delaware Rive Basin Commission and fracking o US PA NY NJ DE o Responsible for setting standards for all projects affecting water resources o Issued draft regulations hydraulic fracturing in the basin o NEPA includes projects or programs entirely or partly financed assisted conducted regulated or approved by federal agencies Does the DRBC apply for this Significant Prox To resources parklands farms wetlands Context o National vs site specific o Short vs long term Intensity pg 895 o Both beneficial and adverse impacts o Does it affect public health or safety o Unique characteristics of the geographic area o Effects likely to be highly controversial o Uncertain or Unknown risks o Precedent for future actions o Cumulative impacts o Scientist historical cultural resources o ESA o Violation of another law Example o Makah tribe to resume whale hunt Precedent for future actions Impact on site specific whale population Yes needed EIS o Cruise ships in Glacier Bay Yes o Keystone XL Pipeline Yes The NEPA Process EIS is normally require o Then they will do one Categorical exclusion for actions that do not normally require an EIS not expected to have significant impacts o Ex Deepwater Horizon Environmental Assessment if cant decide mini EIS o Finding of no significance No EIS Two main types of NEPA legal challenges Failure to perform an EIS EIS is inadequate Other Recent NEPA Cases Polar Bears special rule o Polar Bears is threatened o Cant alleged a taking rule for area outside Alaska o NEPA analysis required Does NEPA work Launched environmental impact assessment generally Successful used to slow or stop projects that could be harmful to the environments Improved the quality and transparence of agency decisions making o But substance Multi disciplinary agency staffs But some analysis after the fact o More worried about litigation than quality of the analysis