Must NEPA Always Be Followed to the Letter When Obtaining an Environmental Assessment to Acquire a Conservation Easement?...

...After All, Aren’t We Maintaining the Environmental Status Quo?”

Note By: Ben W. Alderton; Originally published in JNREL Vol. 19, No. 2

Abstract By: Brandon Wells, Staff Member

Land that the Department of Defense (“DOD”) has been entrusted with for the training of military personnel has increasingly become a refuge for many threatened and endangered animals. Questions about what the DOD should do in this scenario have led to the solution of allowing the DOD to purchase lands surrounding training grounds and designating them as conservation lands. But, another question has arisen from these purchases of conservation lands. When acquiring conservation lands, should the DOD (or any other military department) be required to comply with the National Environmental Policy Act (“NEPA”) and prepare an Environmental Assessment (“EA”)?

NEPA is only triggered by a “major federal action”, and once triggered, requires the federal agency to complete an EA. An EA can result in one of two outcomes, either a finding of no significant impact (“FONSI”) or a duty to prepare an Environmental Impact Statement (“EIS”). Since acquiring conservation land would seem to lead to a FONSI, it seems wasteful to require a government agency to expend time and resources in preparing an EA. However, recent case law has not lead to a definitive answer.

“NEPA is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment to be an environmentally conscious one.” Sabine River Auth. V. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992). The federal agencies have the responsibility for issuing the EA and the FONSI or EIS. Before the DOD or other federal department can issue a FONSI, they have to also issue an EA. An EA is not to be taken lightly, and can result in high expenses in both cost and time to federal departments.
The court in Sabine River came close to resolving this issue. The holding in Sabine River seemed to indicate that acquiring a conversation easement was merely maintaining the status quo, and therefore NEPA was not triggered. However, there was no specific language in the case stating NEPA was not triggered. Also, in Sabine River the federal agency had already prepared an EA, failing to answer the question of whether the EA was actually required.

There has been a circuit split on the issue of whether NEPA is triggered when the Department of the Interior is designating a critical habitat under the Endangered Species Act (“ESA”). Pacific Legal dealt with the specific issue of whether the federal agency must prepare an EIS when listing endangered species. The court in Pacific Legal noted that “the legislative history [suggests that NEPA] was not intended to be applied to agencies whose function it was to protect the environment.” Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The Ninth Circuit case of Douglas County v. Babbitt addressed the issue of whether a federal agency triggered NEPA when it was acting within the statutory scope of the ESA because an EA had been prepared prior. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The court in Douglas County determined that NEPA did not apply to the designation of a critical habitat. However, in Catron County, the Tenth Circuit concluded that NEPA was triggered when designating a critical habitat under the ESA. Catron County Bd. of Comm’rs. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996).

Even though the cases resulted in different outcomes, one possible explanation may be that in Douglas County the designation of habitats only affected federal lands. In Catron County some of the designated land potentially affected land owned by the county. Questions of standing such as these lead to the question of whether a challenge can be made to not preparing an EA in response to acquiring conservation easements.

A plaintiff who asserts purely economic injuries does not have standing to challenge any agency action under NEPA. Douglas County, 48 F.3d at 1499. Therefore, the plaintiff challenging the agency action must have some concrete and cognizable interest in the suit. Courts seem to be lenient in allowing plaintiffs to proceed, but one major group, developers, will undoubtedly be excluded by this standing requirement.

Thus, after much discussion, the question still remains as to whether the DOD must prepare an EA when acquiring these conservation easements. Sabine River seems to indicate that NEPA may not be triggered, but in that case an EA had already been filed prior to acceptance of the easement. The circuit split between Douglas County and Catron County doesn’t do much except to confuse the issue. Until the issue is taken up by Congress or the Supreme Court, the mystery will remain. In the meantime, prudence will likely require the DOD to prepare an EA to protect itself from litigation when acquiring conservation lands.

Sustainable Development and the Regulation of the Coal Bed Methane Industry in the United States

Article by: Allan Ingelson; Originally published in JNREL Vol. 20, No. 1

Abstract by: Derek Leslie, Staff Member

This article critiques the regulatory regime in place to facilitate Coal Bed Methane (CBM) development and production in the United States. Applying the principles underlying the concept of sustainable development, Professor Ingelson suggests that the regulations affecting CBM development are to a large degree a mixed bag and are far from being considered an example of regulation that would successfully promote sustainable development.

The article begins by considering both the theoretical underpinnings of sustainable development as well as the CBM regulatory process as it exists under the current framework. The President's Council on Sustainable Development (PCSD), established in 1993 by President Clinton, proposed ten draft sustainability goals that incorporated five widely recognized sustainability principles that provide the necessary metric for reviewing the CBM regulatory regime. These five baseline principles suggest that Sustainable Development 1) respects ecological integrity, 2) is based on an efficient use of natural, manufactured, and social capital, 3) promotes equity, 4) relies on participatory approaches, and 5) requires environmental stewardship by all levels of decision-makers.

The CBM regulatory system advances these principles to varying degrees. The system is only partially successful at respecting ecological integrity. Regulation advancing this principle includes the scheme's incorporation of the Endangered Species Act, an ecosystem management planning approach for federal lands, and environmental impact assessments under the National Environmental Protection Act (NEPA). However, due to constitutional constraints, much of the process is truncated with respect to development on private lands, where significant development is likely to occur. The principle of the efficient use of resources reveals a system that is to some points sustainable. However, it does not seem to provide for an efficient use of capital as neither full-cost accounting, a polluter pays principle, nor the precautionary approach have been fully incorporated. As to the promotion of equity, the regulatory scheme also fails. This sustainability principle suggests costs and benefits should be distributed equally among the current and future generations. However, the legal system now in place does not require CBM developers to compensate owners for "reasonable use" damage caused by CBM operations. Landowners may not receive compensation for loss of crops, soil damage, decreased land values, et cetera. Inter-generational equity is also challenged by the current regime, because of the nature of the development and current consumption of CBM, depriving future generations of this finite resource. The fourth sustainability principle of public participation is largely addressed by the framework in place. The environmental impact assessment process, as well as citizen lawsuit provisions, provides stakeholders with a reasonable opportunity to participate in the decision-making process. The fifth principle, stewardship, suggests the government must promote and advocate the idea of sustainability both to the public and industry. While the EPA's attempt to incorporate some sustainability concepts in the CBM regulatory framework represents to some degree this principle, the Bureau of Land Management, as well as the various state agencies, have shown no effort to provide leadership in pursuing sustainable CBM development.

Looking at these concepts in detail, Professor Ingelson concludes that the CBM regulatory system does not effectively promote CBM sustainability. While aspects of the system certainly aim towards the goal of CBM sustainability, other features of the regime clearly prioritize other policy goals such as economic growth and use of CBM as an energy resource.

“The Threatened and Endangered Species Recovery Act, or ‘The Wildlife Extinction Bill?’”

Appearing in JNREL Vol. 20, No.2 the following Note was written by former staff member Jacob Eaton. Staff member Jessica Drake wrote the following abstract.

When the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (2005), was enacted, its framers designed it to meet its goals through four specific features: 1) providing discretion to the Secretary of the Interior in listing and delisting species; 2) implementing protection of species on a nationwide level; 3) giving the Secretary the power to acquire and protect from development habitats for these endangered species (a provision in the ESA termed "Critical Habitat Protection"); and 4) creating state programs supported by federal funds and abiding by federal standards. S. Rep. No. 93-307, as reprinted in 1973 U.S.C.C.A.N. 2989, 2990-2991. In the years since its inception, the ESA, while doing tremendous good in the eyes of some, has been criticized for the discretion it provides the secretary in the first feature. Criticisms also arise through the litigation of the critical habitat provision of the ESA. With respect to this provision, courts implemented a balancing test between the interests of the endangered and those of developers – a balance that endangered species all too often lost out on. Critics argue that this further frustrates the effort of ESA in its protective goals. Furthermore, opponents contend that throughout the history of the ESA, few species have moved up or off the lists in the years of protection, and that the act, therefore, does little to protect those species on the list. This lack of movement forces fewer species to be added over time and even those that should be added are often refused because of presumably more pressing concerns.

In response to these types of criticisms, Representative Pombo introduced the Threatened and Endangered Species Recovery Act of 2005 ("TESRA"), H.R. 3824, 109^th Cong. (2005) as a remedy for the existing problems faced by the ESA. In his view, the ESA has largely failed in its attempt to conserve and provide recovery for endangered/threatened species and that this new legislation will ultimately improve the success rate in this area. The TESRA deviates from the ESA in many respects, most radically with a focus on incentives to private landowners to establish conservation plans on their own. The TESRA mechanisms such as cooperative agreements between states and Indian Tribes and improved recovery plans might provide greater protection for endangered species; however, the other deviations from the ESA, those of narrower definitions, broader exceptions, and repeal of critical protections (like habitat protection), could very much outweigh the improvements.

While the push behind the TESRA is one insisting of greater conservation and preservation of endangered species, it comes in disguise. The reality of its implementation is one that will not only frustrate three of the four objectives established by the ESA but also weaken the protections afforded to the endangered and threatened species of the United States created by the ESA. Because TESRA focuses on the private property owner, it focuses less on the species that should be paramount in conservation legislation. The kinds of incentives provided to landowners would be expensive to the budget of the Act and not dependent upon actual implementation, only a proposed plan to conserve sometime in the future. With the narrow focus of the proposed Act, the criticism and problems created by the ESA will not be solved.

“King Fish: Pushing the Limits of Judicial Authority in National Wildlife Federation v. National Marine Fisheries Service.”

Former staff member Stuart Lipke wrote this comment appearing in JNREL Vol. 21 No. 2. Staff member Matt Cocanougher wrote the following abstract.

The salmon industry in the Northwest United States serves many different purposes at the same time. This fish has historically been a part of Native American religion and has currently become a major source of income for the area. Unfortunately, operation of the Colombia River's hydroelectric dams has begun to kill many of the salmon, as they swim into the dam's turbines. Because of this problem, several different species of salmon have been added onto the list of endangered species protected by the Endangered Species Act ("ESA").

National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005) (per curiam) was a result of a decision by an Oregon federal district court to grant an injunction which required the dam administrators on five dams along the Snake River to increase spill over as a way to protect the salmon. The dam administrators, Federal Columbia River Power System ("FCRPS"), were forced to follow four procedures outlined in the ESA. FCRPS was first obligated to consult an agency to determine whether an action is likely to threaten an endangered species. Next, the ESA requires that the agency which is actually carrying out the consultation use the best scientific and commercial data available. After the first two steps, the consulting agency issues a biological opinion outlining the anticipated impact on the species and the future risk to the species. Finally, the consulting agency makes a jeopardy determination which looks to the potential cumulative effects of the proposed action coupled with the current status of the species or habitat.

In this case, the National Wildlife Federation (NWF), along with the State of Oregon and others brought suit in federal court alleging that the National Marine Fisheries Service ("NMFS"), the consulting agency for FCRPS, failed to conduct a proper jeopardy determination during their consultation for their biological opinion of 2004. After finding several failures on NMFS's part, the district court granted a preliminary injunction, ordering FCRPS and other agencies to increase summer spill for several dams. NMFS appealed this preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit rejected NMFS's arguments on appeal. It held that when Congress passed the ESA, it decided to tip the balance in favor of the endangered species in the event of hardships between the species and other industries. Next, the court found that the district court did not abuse its discretion in this case because it reasonably found that irreparable harm would result from inaction, and its actions were in furtherance of the ESA. Lastly, the court concluded that the district court's argument was narrowly tailored to fit the circumstances at hand, especially as NMFS failed to raise this issue during the injunction hearing.

This case highlights two key issues. The first is whether the district court's proactive role in granting the preliminary injunction crosses over into the realm of the executive branch's enforcement power. The second is what would happen if the district court actually determined that breaching the dams was necessary to carry out the ESA, which has not been done by a court before. Both of these issues remain politically contested and their resolution will have a big impact on the salmon industry.

Protecting the Roads Not Traveled: The Continued Conflict Around the “Roadless Rule” of 2001

This post was written by Assistant Online Editor Zach Becker.

On August 3, 2009, the State of Colorado proposed a petition to send to the USDA as to the management of the national forest "roadless areas" within the State of Colorado. On that same day, began a 60 day public comment period as to the proposed petition, which has provided an opportunity for the general public to critique and/or praise the proposals by Colorado before the state forwards its roadless rule petition to the USDA for approval. As one can imagine, this 60 day period has been filed with emotional pleas from environmental groups and surprisingly sportsmen. Pleas that point out legitimate and critical flaws in the proposed plan's ability to effectively protect some of the majestic, and largely untouched natural forests of Colorado and the fish and wildlife that call these habitats home. One of the areas of highest concern is the Currant Creek area, located of the North Fork of the Gunnison River, which is of interest for its coal mining potential. This area of undisturbed and pristine aspen and oak forests is a key location for elk and mule deer rearing, migration and hunting and would be immensely impacted by an allowance of mining in this pristine and remote habitat, high in the Colorado Rockies.

The U.S. National Forest Service divides each of its "management area" into different units. Each unit is provided with a different "forest plan" in order to achieve desires objectives, goals and management prescriptions for that unit. "Activities proposed to occur within a management area must be consistent with the management-area prescriptions as well as with the prescriptions applicable to the entire forest unit." Cal. ex. rel. Lockyer v. USDA, 2009 U.S. App. LEXIS 19219 at *6 (9th Cir. 2009). One such national forest unit distinction is the "roadless area." The roadless areas are largely undeveloped areas of wilderness, generally without roads. Before the promulgation of the "Roadless Rule" in 2001, "most forest plans provided for the extraction uses, including logging, mining, oil and gas development, and construction of off-road vehicle routes, on at least some portion of what are classified as inventoried roadless areas." Id at *7-8. In 1999, President Clinton asked the National Forest Service to devise a rule that would provide permanent protection to roadless areas in the national forests. Within a week, the Forest Service had begun work on the "Roadless Rule" and the rule was promulgated on January 5, 2001, just prior to Clinton leaving office, and went into effect on May 12, 2001. This provided the requested protection to all of the nation's roadless areas, other than select areas in Alaska and Idaho. The "Roadless Rule" was met almost immediately with opposition, with several cases calling into question the validity of such a blank rule throughout the US with little concern for state economies and objectives.

In response to this opposition and now within the Bush era, the National Forest Service devised and announced in 2005, the "State Petition Rule", which was thought to replace the "Roadless Rule." The "State Petition Rule" provided that a state could petition the Forest Service to make state-specific considerations for projects and treatment schemes for the roadless areas within that state's borders.

On August 25, 2009, The Ninth Circuit Court of Appeals ruled that the "State Petition Rule", was promulgated incorrectly, having violated the statutory requirements for promulgation of both the National Environmental Policy Act and the Endangered Species Act. Cal. ex. rel. Lockyer v. USDA, 2009 U.S. App. LEXIS 19219 (9th Cir. 2009). The Court then reinstated the Clinton era "Roadless Rule", which provides greater protection to the wildlife and environment found within the roadless areas of the nation's federal forests, and permanently enjoined the "State Petition Rule".

The state petition that may be forwarded by Colorado depending on the public comment period's reaction, is a petition as would be compliant with the "State Petition Rule", which would not be possible under the "Roadless Rule." There have been U.S. District Court decisions that have come to the opposite conclusion of the Ninth Circuit as to the validity of the two rules in question, in fact actually permanently enjoining the "Roadless Rule" throughout the U.S. Wyoming v. United States Dep't of Agric., 570 F. Supp. 2d 1309 (D. Wyo. 2008). Nevertheless, the Ninth Circuit opinion followed in 2009. The situation in Colorado presents a fork in the road for both the State of Colorado and the USDA. If the state chooses to forward its petition for consideration as allowed by the "State Petition Rule", then the USDA will have to directly address the question that has provided a split within authorities throughout the U.S. Without such action by the USDA, the only way for the roadless areas to be totally protected is by express action of President Obama to uphold the 2001 national rule, asking for the USDA to reinstate the "Roadless Rule", so as to pursue the same direction and objective as Clinton had in mind when he first asked for the rule to be created in 1999. With such explicit action, the roadless areas of our nation's forests can once again be guaranteed permanent and effective protection, thus ensuring that these areas and the wildlife that are contained within them, may be present for future generation within this country.

The Endangered Species Act and the Conflict With Modern Economic and Development Interests

This note written by staff member Michael D. Russell appeared in JNREL Vol. 22 No.2. The abstract was written by staff member Ramsey Groves.

Congress enacted the Endangered Species Act (ESA) in 1973. The ESA was enacted because many people were concerned about several species and their diminishing populations. These species included the bald eagle, the American alligator, the wolf, and the grizzly bear. Accordingly, one of the main purposes of the ESA is to protect these and other species of fish, wildlife, and plants. Another purpose of the ESA is to protect the ecosystems of both endangered and threatened species. These ecosystems are termed "critical habitats." Disputes stemming from the ESA often concern the impact of an economic development on a habitat, which ultimately harms a species.

Two competing interests are generally involved in ESA conflicts. These are the interests of conservation and the interests of economic development. The ESA tends to place more value on conservation interests than economic development concerns. Due to these two clashing interests, this statute has produced a great deal of controversy. However, economic considerations also affect the conservation side of the dispute. For example, many citizens, such as fishermen, rely upon a species for their livelihood. If that particular species is not protected and ultimately eradicated, there will be grave economic consequences.

To ensure that specific species are protected, the ESA provides federal agencies with certain duties. Unless the agency has been granted an exemption, the ESA requires every federal agency to guarantee that its actions do not harm an endangered or threatened species. The agency in question is forced to find alternatives if it is determined that specific actions would violate the ESA. If no alternatives are available, a committee is formed to determine whether economic interests outweigh the interests of the ESA. This committee, which has become known as the "God Squad," may choose to allow agency action. This committee is essentially playing God because it determines if a species is sacrificed due to a stronger economic interest.

The ESA does provide for judicial review, but there is no express standard of review included in the statute. According to courts, the arbitrary and capricious standard is the appropriate standard of review under the ESA. Consequently, courts should generally defer to reasonable agency decisions. Courts may not weight interests because, in reality, agencies are better equipped to perform this balancing function.

There has been a great deal of controversy due to the ESA. For example, in the middle of a drought in the Klamath Basin, the government shut off irrigation water to provide sufficient water levels for a species of fish. Due to lack of access to water, farmers and ranchers were adversely affected. Additionally, people in Georgia have faced water shortages because the ESA required a certain amount of water to be released downstream to protect endangered species. These examples illustrate how the ESA forces judgment calls when important but competing interests clash. As a result, the ESA will certainly remain a hotly debated statute for years to come.