Questionable authority: a recent CEQ guidance memorandum.

  I. INTRODUCTION
 II. THE CURRENT STATE OF AFFAIRS IN THE NINTH CIRCUIT
     A. Great Basin Mine Watch v. Hankins
     B. Northwest Environmental Advocates v. National Marine Fisheries
       Service
III. HISTORICAL BACKDROP AND EMERGING PRECEDENT
     A. Lands Council v. Powell
     B. The CEO's Response to Lands Council v. Powell?
     C. Ninth Circuit District Courts Address the Guidance Memorandum
        1. League of Wilderness Defenders v. U.S. Forest Service
        2. Conservation Northwest v. U.S. Forest Service
 IV. TREATMENT OF CEQ GUIDANCE AND SIMILAR AGENCY STATEMENTS IN THE PAST
     A. Cabinet Mountains Wilderness v. Peterson
     B. Christensen v. Harris County
     C. NationsBank of North Carolina, N.A. v. Variable Annuity Life
        Insurance Co
     D. Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service
  V. THE AUTHORITATIVE WEIGHT DUE CEQ's JUNE 24, 2005 GUIDANCE
     MEMORANDUM
     A. Chevron Deference Cannot Apply to the Guidance Memorandum
     B. Courts Should Not Apply Skidmore Deference to the Guidance
       Memorandum
     C. Courts Should Not Apply Auer Deference to the Guidance
       Memorandum
 VI. CONCLUSION

I. INTRODUCTION

The National Environmental Policy Act (NEPA) (1) and its implementing regulations require that federal agencies use an evaluative process before undertaking "major Federal actions significantly affecting the quality of the human environment." (2) Among other things, agencies must analyze irreversible resource commitments involved in implementation of the proposed action, alternatives to the action under consideration, and the proposed action's environmental impact. (3) This Chapter discusses the degree of consideration NEPA requires the government to give relevant prior actions when analyzing a proposed action's impacts. In determining whether to undertake an environmentally significant action, the importance of examining in detail the impacts of prior actions cannot be overstated. Without this detailed consideration, a fully informed decision becomes unlikely. Such decisions are vital because the negative effects of inadequate government environmental oversight may span generations, are inescapable, and are often irreversible.

NEPA mandates a process by which federal agencies examine their proposed actions likely to have a significant effect on the environment, which includes the consideration of an action's cumulative impact in light of prior actions and conditions. NEPA's stated purposes include: "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man [and] to enrich the understanding of the ecological systems and natural resources important to the Nation." (4) NEPA requires all federal agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment" a statement addressing the proposed action's environmental impact in detail. (5) NEPA also created the Council on Environmental Quality (CEQ). (6) CEQ promulgates regulations interpreting NEPA in the Code of Federal Regulations, pursuant to informal rulemaking under the Administrative Procedure Act (APA). (7) CEQ's authority for issuing these regulations is found nowhere within NEPA; the statute makes no mention of CEQ having such power. Rather, CEQ's purported interpretational power regarding NEPA springs from two Executive Orders. The first, issued by the Nixon Administration, required CEQ to "[i]ssue guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment, as required by section 102(2)(C) of [NEPA]." (8) The other Executive Order, issued by the Carter Administration, struck the above quoted section of the Nixon Executive Order and replaced it with the following language, requiring CEQ to:

   Issue regulations to Federal agencies for the implementation of the
   procedural provisions of [NEPA] (43 U.S.C. 4332(2)). Such
   regulations shall be developed after consultation with affected
   agencies and after such public hearings as may be appropriate. They
   will be designed to make the environmental impact statement process
   more useful to decisionmakers and the public.... (9)

CEQ's regulations state the details of what must be included in an environmental impact statement (EIS) under NEPA and courts generally accept them as authoritative. (10) They provide factors agencies must consider in determining the scope of an EIS. One regulation provides that "[t]o determine the scope of environmental impact statements, agencies shall consider ... [c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement." (11) The CEQ regulation central to this Chapter defines "cumulative impact" as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." (12) CEQ's authoritative regulations therefore require agencies to include within the scope of an EIS prior actions that contribute to the cumulative impact of the action under consideration. However, these regulations do not specify whether the effects of cumulatively significant prior actions must be addressed individually in an EIS or may be considered in the aggregate, as part of the environmental baseline.

The difference between analyzing the effects of cumulatively significant prior actions on an individual basis, as opposed to considering such effects in the aggregate as part of the environmental baseline, is important. Lands Council y. Powell (13) illustrates this point. In Lands Council, plaintiff environmental groups challenged the cumulative impacts analysis of a U.S. Forest Service (USFS) EIS examining a proposed timber sale. (14) The USFS EIS considered the environmental impacts of prior harvests in the aggregate, "contain[ing] only vague discussion of the general impact of prior timber harvesting, and no discussion of the environmental impact from past projects on an individual basis." (15) The court indicated that a separate discussion of prior harvests from individual projects would have "aid[ed] the public in assessing whether one form or another of harvest would assist the planned forest restoration with minimal environmental harm." (16) The ability to analyze proposed actions in light of the discrete effects of prior actions is necessary to making an informed decision. When relevant prior actions are lumped into the environmental baseline and considered in the aggregate, the lessons of such actions are effectively removed from the decision making process. Such aggregation may also lead to a false sense of security, in which prior degradation is taken for granted because it is considered part of the environmental baseline.

The subject of this Chapter is a June 24, 2005 CEQ guidance memorandum (Guidance Memorandum) (17) attempting to promote the view that, under the CEQ regulation at 40 C.F.R. [section] 1508.7, an agency's EIS generally need only address cummulatively significant prior environmental actions in the aggregate, incorporating those actions into the environmental baseline rather than considering their individual cumulative impacts. (18) Courts should decline to give the Guidance Memorandum deference because its recommendations are fundamentally at odds with NEPA's policy statements and because CEQ's authority to promulgate it is on shaky statutory grounds. This Chapter begins by considering two 2006 Ninth Circuit cases discussing the manner in which an EIS must address cumulatively significant prior environmental actions, demonstrating how these cases are at odds with the Guidance Memorandum. Next, the Chapter examines the two instances where Ninth Circuit district courts have addressed the Guidance Memorandum directly and accorded it more deference than it is due. The Chapter proceeds to analyze courts' treatment of other CEQ guidance promulgated in a similar manner to the Guidance Memorandum, as well as courts' treatment of materials from other agencies analogous to the Guidance Memorandum. The Chapter concludes by demonstrating that the Guidance Memorandum is entitled to little, if any, authoritative weight.

II. THE CURRENT STATE OF AFFAIRS IN THE NINTH CIRCUIT

The Ninth Circuit is on the verge of a controversy regarding the manner in which government agencies must account for prior actions when examining the cumulative impact of a proposed environmentally significant action under NEPA. In two cases issued in 2006, Great Basin Mine Watch v. Hankins (19) and Northwest Environmental Advocates v. National Marine Fisheries Service (NWEA), (20) the Ninth Circuit held that for an EIS to be valid it must describe the effects of past actions that have a cumulative impact on the proposed action; merely listing past actions of cumulative significance without describing their effects is insufficient. (21) The reasoning the Ninth Circuit employed in Great Basin and NWEA is quite similar to that which it used in an opinion published in its final, amended form on January 24, 2005, in Lands Council. (22) These three opinions are at odds with the June 24, 2005 Guidance Memorandum, which provides that "[a]gencies are not required to list or analyze the effects of individual past actions unless such information is necessary to describe the cumulative effect of all past actions combined," and they have "substantial discretion" regarding the proper depth of analysis. (23) The Guidance Memorandum suggested an outcome for this use of discretion, asserting that "[g]enerally, agencies can conduct an adequate cumulative effects analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions." (24)

A. Great Basin Mine Watch v. Hankins

In Great Basin, the. Ninth Circuit held an EIS invalid because it aggregated past projects into the environmental baseline rather than considering their individual effects on the cumulative impact of an agency's proposed action. (25) Plaintiff environmental groups (collectively, Great Basin) sued the Department of the Interior (DOI) and the Bureau of Land Management (BLM), alleging violation of NEPA and the APA. (26) Newmont Mining Corporation (Newmont) intervened on behalf of the defendants. (27) Newmont had proposed expanding its operations on BLM land, and submitted its plans to the local BLM office. (28) The BLM determined that Newmont's planned expansion could cause a "significant environmental impact" and, pursuant to NEPA, prepared an EIS. (29) Plaintiffs argued, inter alia, that the cumulative impact analysis of Newmont's plans in the BLM's EIS was insufficient under NEPA because it did not adequately analyze the environmental effects of other nearby projects. (30) Rather, the EIS only provided a list of other nearby projects, without discussing their individual impacts. (31) The Ninth Circuit noted that "'[t]he analysis must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects,'" (32) and that "'[d]efendants must do more than just catalogue 'relevant past projects in the area.'" (33) The court held the EIS insufficient, and therefore invalid, in part because it contained "'no discussion of the environmental impact from past projects on an individual basis.'" (34)

B. Northwest Environmental Advocates v. National Marine Fisheries Service

Employing reasoning similar to that in Great Basin, in NWEA, (35) the Ninth Circuit upheld an agency's EIS over the plaintiff's challenge that it did not sufficiently consider the cumulative impact of past projects. In NWEA, plaintiff environmental group challenged the adequacy of a National Marine Fisheries Service (NMFS) EIS examining a proposed channel deepening project's impact on a river's salinity. NWEA contended that the government failed to analyze the project in. light of earlier and future actions. (36) However, the EIS indicated that the proposed project alone would not affect salinity. (37) Distinguishing Lands Council, (38) the court held that NMFS would have been required to catalog (i.e., consider discrete impacts of) individual past actions if the EIS had not shown that cumulative impacts of past actions combined with the proposed action would be negligible. (39) The EIS was valid because it demonstrated that "cataloguing past projects effects on salinity would not have informed assessments about the project and its alternatives." (40)

III. HISTORICAL BACKDROP AND EMERGING PRECEDENT

The Guidance Memorandum seems to have a special connection to the Ninth Circuit. Given its timing and contents, it is arguably a response to Lands Council, a Ninth Circuit case. Also, the only courts yet to address the Guidance Memorandum are district courts within the Ninth Circuit.

A. Lands Council v. Powell

In Lands Council, the Ninth Circuit held an EIS invalid because it aggregated past significant actions in the environmental baseline rather than cataloging these actions in the cumulative impacts analysis. Just six months later, CEQ issued the Guidance Memorandum. Plaintiff environmental group challenged a United States Forest Service (USFS) EIS for a timber harvest, arguing, inter alia that the EIS was invalid because it did not include a detailed discussion of prior timber harvests and their impact on the site of the proposed harvest. (41) The court agreed with plaintiffs and held that the USFS's aggregated treatment of prior harvests violated NEPA. (42) The court noted that NEPA requires adequate analysis of pertinent past projects' impacts, (43) and provided that "the general rule under NEPA is that, in assessing cumulative effects, the [EIS] must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment." (44) The court reasoned that although the USFS provided tables giving the general effects of prior harvests, the EIS was invalid without a discussion of the specific projects used to generate the tables sufficient to "aid the public in assessing whether one form or another of harvest would assist the planned forest restoration with minimal environmental harm." (45)

B. The CEQ's Response to Lands Council v. Powell?

Soon after the amended Lands Council opinion, the CEQ issued the Guidance Memorandum, interpreting 40 C.F.R. [section] 1508.7 to provide that agencies have discretion in determining how to include past actions in cumulative impact analyses, and that an aggregate accounting of past actions is generally sufficient. (46) Notably, this guidance took the form of a memorandum addressed to the heads of federal agencies, not a regulation published in the C.F.R. after notice and comment rulemaking raider the APA. (47) The memo provides that the "CEQ's interpretation of NEPA is entitled to deference," (48) citing Andrus v. Sierra Club, (49) which addressed the authoritativeness of the CEQ's C.F.R. regulations, rather than documents like the Guidance Memorandum. The Guidance Memorandum provides that "[b]ased on scoping, agencies have discretion to determine whether, and to what extent, information about the specific nature, design, or present effects of a past action is useful for the agency's analysis of the effects of a proposal for agency action and its reasonable alternatives." (50) The guidance notes that unless necessary to describe the effects of all prior actions combined, agencies need not catalog (i.e., consider the discrete impacts of) individual past actions in an EIS. (51) Moreover, in determining such necessity, the guidance indicates that agencies should retain substantial discretion. (52) The memo provides that "[g]enerally, agencies can conduct an adequate cumulative effects analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions." (53) Two district court cases within the Ninth Circuit have addressed the Guidance Memorandum.

C. Ninth Circuit District Courts Address the CEQ Guidance Memorandum

As of this writing, courts have had occasion to address the Guidance Memorandum only twice, in League of Wilderness Defenders v. U.S. Forest Service (54) and in Conservation Northwest v. U.S. Forest Service. (55) Coincidentally, the forums for both cases were district courts within the Ninth Circuit.

1. League of Wilderness Defenders v. U.S. Forest Service

In League of Wilderness Defenders, the Oregon District Court struck the government's use of the Guidance Memorandum as post hoc rationalization but accepted its substance, reasoning that the Supreme Court countenanced the guidance's approach. Plaintiff environmental groups challenged a USFS EIS examining a proposed timber sale, alleging that the USFS violated NEPA by, inter alia, failing to sufficiently consider the cumulative impact of individual prior actions in the area of the timber sale. (56) USFS, relying significantly on the Guidance Memorandum, (57) responded that it was "not required to analyze past, present, and future actions on an individual basis, but rather to consider the effects of these actions in the aggregate, analyzing the incremental impact in the context of the proposed action that is subject to analysis in the EIS." (58) The court characterized the Guidance Memorandum as an invalid "post-hoc rationalization" because the CEQ released it after the USFS had decided to proceed with the timber sale. (59) However, the court reasoned that the Supreme Court had approved of the Guidance Memorandum's analysis in Department of Transportation v. Public Citizen, (60) in which the Court interpreted 40 C.F.R. [section] 1508.7, (61) the same regulation addressed in the Guidance Memorandum.

The Oregon District Court's interpretation of Public Citizen in League of Wilderness Defenders is unsound. In Public Citizen, plaintiff environmental groups and unions argued in the Ninth Circuit that the Federal Motor Carrier Safety Administration (FMCSA) of the Department of Transportation (DOT) violated NEPA by making a finding of no significant impact (FONSI) in its initial environmental assessment (EA), and therefore not preparing an EIS (62) regarding the President's lifting of a moratorium prohibiting Mexican-domiciled motor carriers from operating within the United States. (63) The Ninth Circuit agreed with plaintiffs and ordered FMCSA to prepare an EIS. (64) The Supreme Court granted certiorari (65) and reversed, (66) holding that under 40 C.F.R. [section] 1508.7, (67) FMCSA was not required to consider the cumulative impact of Mexican trucks operating in America. (68) FMCSA could aggregate such action as part of the environmental baseline because it had no authority to control the entry of Mexican trucks into America. (69) The Court provided that when an action is beyond the discretion of an agency, the "agency cannot be considered a legally relevant 'cause' of the effect.... The President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers." (70) The district court reasoned that because the Court in Public Citizen construed 40 C.F.R. [section] 1508.7 as requiring "an evaluation of the incremental impact of the project at issue rather than focusing on the incremental impacts attributable to each of the past, present and reasonably foreseeable future actions in the planning area," (71) the Court therefore "approved an agency's approach that considers the effects of past actions in the aggregate, and explained that actions need not be considered separately and distinctly when analyzing cumulative effects." (72) However, the Supreme Court's decision turned upon the issue of the agency's discretion. (73) The Court held that FMCSA was not required to consider the cumulative impacts only with respect to aspects of its action over which it had no discretion; 40 C.F.R. [section] 1508.7 still required FMCSA to consider the "incremental impact" of its own rules in the context of the President's decision to allow Mexican trucks to operate in the United States. (74)

The attenuated nature of the Oregon District Court's use of Public Citizen in its analysis in League of Wilderness Defenders is further demonstrated by the significant degree to which the two cases are distinguishable on their facts. In Public Citizen, the Court held that DOT did not need to undertake a cumulative impacts analysis of Mexican motor carriers operating in the United States because DOT had no control over the entry of Mexican trucks; such an issue falls within the President's power to conduct foreign relations. (75) However, in League of Wilderness Defenders, the plaintiffs argued that the effects of prior actions that must be included in the proposed timber sale EIS's cumulative impact analysis were discretionary actions of USFS itself, rather than the actions of a party beyond the authority of USFS. (76)

In League of Wilderness Defenders, the Plaintiff's Response and Reply Memorandum (77) provided a compelling argument. League of Wilderness Defenders argued that USFS's reliance on the CEQ guidance memo was unwarranted for three reasons: 1) even if not wholly invalid because of its conflict with NEPA, the guidance memo should be accorded only some deference because it was not reached after notice-and-comment rulemaking or after a formal adjudication; (78) 2) post hoc rationalizations for agency actions are not acceptable in court; (79) 3) authoritative caselaw holds that "deference to an agency's interpretation of its regulation is warranted only when the regulation's language is ambiguous," (80) and when that interpretation does not conflict with the underlying statute or the regulation itself. (81) League of Wilderness Defenders reasoned that because the CEQ's interpretation permits agencies to effectively not analyze the cumulative impacts of individual past actions, it is inconsistent with NEPA's regulations and is therefore invalid. (82) League of Wilderness Defenders argued that Public Citizen should be limited to its facts, reasoning that "[i]n Public Citizen, the Court addressed a narrow issue concerning whether NEPA required [FCMSA] ... to evaluate the environmental effects of cross-border operations of Mexican-domiciled motor carriers when FCMSA merely promulgated administrative rules implementing a presidential order allowing such border-crossing activities to occur." (83) Unlike FCMSA in Public Citizen, League of Wilderness Defenders argued that USFS had discretion to prevent environmental harm and should therefore be required to undertake a thorough cumulative impacts analysis. (84)

For several reasons, the Oregon District Court in League of Wilderness Defenders should have adopted the reasoning advanced in Plaintiffs Response and Reply Memorandum rather than that in Defendant's Opening Summary Judgment Memorandum. (85) The primary reason is because the plaintiffs position is more in line with the policy behind NEPA. The purpose of NEPA is "to promote efforts which will prevent or eliminate damage to the environment ... [and] to enrich the understanding of the ecological systems and natural resources important to the nation...." (86) Allowing agencies to aggregate the effects of prior actions into the environmental baseline rather than requiring them to consider in detail the cumulative impact of individual prior actions directly contradicts this purpose. More thorough analysis serves to increase knowledge about the environment, which in turn allows actors to make decisions that minimize negative environmental effects. The sort of aggregation the Oregon District Court countenanced in League of Wilderness Defenders and the CEQ advocated in the Guidance Memorandum allows for less thorough analysis. This does not serve to increase knowledge about the environment, thereby decreasing the likelihood that actors will make decisions that minimize negative environmental effects. Three Supreme Court cases, Chevron v. Natural Resources Defense Council, (87) Skidmore v. Swift & Co., (88) and Auer v. Robbins, (89) provide a precedential underpinning to this policy argument. These cases are used below in Part V to help demonstrate that the Guidance Memorandum is entitled to little, if any, authoritative weight.

2. Conservation Northwest v. U.S. Forest Service

Aside from League of Wilderness Defenders, additional discussion of the Guidance Memorandum appears only in an order addressing a motion for preliminary injunction in Conservation Northwest. (90) In that case, the District Court for the Eastern District of Washington accepted the Guidance Memorandum as authoritative, but based this acceptance on unpersuasive legal analysis and bad science. In Conservation Northwest, plaintiff environmental groups alleged, inter alia, that USFS violated NEPA by failing to adequately consider the cumulative impacts of past timber activities in conjunction with a post-fire salvage timber sale in Washington State, citing to Lands Council. (91) In response, USFS argued that the proposed salvage timber sale did not have the same connection with prior timber action as the sale addressed in Lands Council (92) and asserted that its actions were consistent with the Guidance Memorandum. (93) The court sided with defendants, denying plaintiffs' motion for a preliminary injunction. (94) The court indicated that in Lands Council the Ninth Circuit determined that the lack of discussion of the environmental effects of prior timber activities prevented the government and the public from engaging in NEPA's required analysis. (95) The district court attempted to distinguish Lands Council on its facts, providing that "here, the nexus of prior harvests and environmental harm does not exist. In the present case, the widespread catastrophic fire overshadowed previous timber sales in the area, making previous activities' impacts on the land insignificantly small." (96)

To suggest that a forest fire somehow negates all impact from prior timber activities is preposterous; forest fires, even when severe, do not erase logging roads and the effects of fire suppression efforts, replenish eroded slopes, or repopulate species that prior harvests drove from the land. Moreover, the court's assertion has been contradicted in at least one jurisdiction. (97) The court also incorrectly asserted that the Guidance Memorandum superseded the Ninth Circuit's opinion in Lands Council because it came later in time. (98) This is incorrect because, within the Ninth Circuit, the authority of Ninth Circuit precedent is greater than that of the Guidance Memorandum, which is entitled to little, if any, deference. (99) The court bolstered its position by indicating that the USFS EIS complied with the Guidance Memorandum, which the court asserted was authoritative, citing Andrus v. Sierra Club. (100) As mentioned above, Andrus stands for the proposition that the CEQ's regulations published in the Code of Federal Regulations are authoritative; (101) the case did not address statements not subject to notice and comment, like the Guidance Memorandum. (102) Andrus gave deference to CEQ regulations because they went through a "detailed and comprehensive process." (103) The Supreme Court's subsequent interpretation of Andrus in Marsh v. Oregon Natural Resources Council (104) provided that CEQ regulations are entitled to deference but did not mention interpretations like the Guidance Memorandum. (105) This indicates that the Guidance Memorandum should not be accorded deference under Andrus or its subsequent interpretation in Marsh.

IV. TREATMENT OF CEQ GUIDANCE AND SIMILAR AGENCY STATEMENTS IN THE PAST

Courts have addressed similarly promulgated CEQ guidance aside from the Guidance Memorandum, as well as comparable materials from other federal agencies, in Cabinet Mountains Wilderness y. Peterson, (106) Christensen v. Harris County, (107) Nations Bank of North Carolina, N.A. v. Variable Annuity Life Insurance Co., (108) and Northwest Ecosystem Alliance v. US. Fish and Wildlife Service. (109) These four cases are discussed below and are representative of the treatment the Guidance Memorandum should receive in future cases.

A. Cabinet Mountains Wilderness v. Peterson

In Cabinet Mountains, the District of Columbia Court of Appeals held that a CEQ guidance statement promulgated similarly to the Guidance Memorandum was not persuasive authority because it was an informal statement, having not been subject to notice and comment rulemaking. (110) In Cabinet Mountains, plaintiff environmental groups challenged USFS approval of mineral exploration in a wilderness area, alleging, inter alia that the agency violated NEPA by failing to prepare an EIS. (111) The district court found that USFS had complied with NEPA and the plaintiffs appealed. (112) To determine whether USFS had complied with NEPA the court of appeals considered four criteria, (113) the fourth of which allowed examination of mitigation the agency applied to the proposed action. (114) Plaintiffs' argument relied on a CEQ statement, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations" (Forty Questions). (115) Forty Questions provided, "[a]s a general rule, the regulations contemplate that agencies should use a broad approach in defining significance and should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement." (116) The court indicated that plaintiffs' argument's dependence on Forty Questions was misguided. (117) The court found that "[t]he 'Forty Questions' publication ... is merely an informal statement, not a regulation, and we do not find it to be persuasive authority." (118) The court explained that "[u]nlike the regulations considered in the Andes case, it was not the product of notice and comment procedures and does not impose a mandatory obligation on all federal agencies." (119) The court noted that the underlying C.F.R. regulations did not support the portion of Forty Questions plaintiffs cited (120) and affirmed the district court's opinion. (121)

B. Christensen v. Harris County

In Christensen, the Supreme Court held that informal interpretations, such as the Guidance Memorandum, are not accorded Chevron deference (122) but courts may consider giving such statements lessened Skidmore deference. (123) In Christensen, plaintiff Harris County Sheriff employees sued Harris County, alleging that the county's policy requiring employees to take time off in lieu of pay for accrued compensatory time violated the Fair Labor Standards Act (124) (FLSA). (125) Before establishing the policy at issue, Harris County sought the advice of the U.S. Department of Labor's Wage and Hour Division. (126) The Division's Administrator issued a response (Opinion Letter) providing that "a public employer may schedule its nonexempt employees to use their accrued compensatory time as directed if the prior agreement specifically provides such a provision.... Absent such an agreement ... neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." (127) Plaintiffs argued that the county's policy contradicted the FLSA's requirement "that an employer reasonably accommodate employee requests to use compensatory time." (128) Agreeing, the district court granted plaintiffs summary judgment and entered a declaratory judgment that the defendant's policy violated the FLSA. (129) The Fifth Circuit Court of Appeals reversed, holding that because the FLSA did not address the matter it did not prohibit the county's policy. (130) The Supreme Court granted certiorari. (131) Before the Supreme Court, plaintiffs argued (132) that the Opinion Letter was entitled to Chevron deference. (133) The Supreme Court disagreed, affirming the court of appeals, holding that "[i]nterpretations such as those in opinion letters ... all of which lack the force of law--do not warrant Chevron-style deference.... [I]nterpretations contained in formats such as opinion letters are 'entitled to respect' under [Skidmore], but only to the extent that they have the 'power to persuade.'" (134)

C. NationsBank of North Carolina, N.A. v. Variable Annuity Life Insurance Co.

In NationsBank, the Supreme Court gave deference to an Administrator's interpretation of a statute he was mandated to enforce, a situation distinguishable from CEQ's interpretive, non-enforcement relation to NEPA. Pursuant to 12 C.F.R. [section] 5.34, (135) NationsBank, a national bank, and its brokerage subsidiary sought the Comptroller of the Currency's authorization for the brokerage subsidiary to serve as an annuities sales agent. (136) The Comptroller interpreted the National Bank Act [section] 24 Seventh (137) as providing national banks with the power to broker annuities. (138) Determining that [section] 92, (139) which addresses sales of insurance by banks in towns of populations not exceeding 5,000, did not define annuities as "insurance" and therefore prohibited his interpretation of the National Bank Act, the Comptroller granted NationsBank's request. (140) The Variable Annuity Life Insurance Co. (VALIC) challenged the Comptroller's interpretation, seeking injunctive and declaratory relief under the APA in district court. (141) The district court granted summary judgment to NationsBank and the Comptroller, (142) but the Fifth Circuit Court of Appeals reversed, rejecting the Comptroller's interpretations. (143) The Supreme Court granted certiorari. (144) The Court held that the Comptroller is "the administrator charged with supervision of the National Bank Act [and] bears primary responsibility for surveillance of 'the business of banking' authorized by [section] 24 Seventh," (145) and indicated that the extent of the Comptroller's enforcement role (146) warranted according (147) Chevron deference (148) to his interpretations of the National Bank Act. Deferring to the Comptroller's "reasonable" interpretations, the Court reversed the Fifth Circuit Court of Appeals. (149) NationsBank indicates that judicial deference to something like a policy statement hinges on whether the agency or the agent making the statement is mandated to enforce the underlying statute and on whether the policy statement in question is a reasonable interpretation of the underlying statute.

D. Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service

In Northwest Ecosystems, the Ninth Circuit held that a policy statement was entitled to Chevron deference. (150) Plaintiff environmental groups brought an as-applied challenge to a joint policy statement of the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service, the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS Policy). (151) This policy statement clarified the agencies' interpretation of "distinct population segment," (152) a term used in the Endangered Species Act (ESA). (153) The Ninth Circuit held that this policy statement was entitled to Chevron deference. (154) The court noted that the ESA expressly gave USFWS the authority to promulgate "guidelines" setting forth criteria for evaluations of petitions to list species as endangered. (155) The ESA provides that these guidelines must be published in the Federal Register (156) after the agency gives the public notice and an opportunity to comment. (157) The Ninth Circuit noted that while the Supreme Court has held that policy statements are not entitled to Chevron deference in United States v. Mead Corp., (158) and in Christensen v. Harris Count, (159) the Court denied such deference in part because the agencies did not use public notice-and-comment procedures. (160) The court distinguished Mead and Christensen on the ground that in this case, USFWS gave notice and opportunity to comment on its proposed policy statement. (161) Appellants argued that the agencies had considered adopting the guideline as a rule but had instead ultimately adopted it as a policy statement, indicating that the agencies did not intend the guideline to have the force of law. (162) The court summarily deemed this argument "unpersuasive," noting that USFWS had promulgated the guideline as a statement of how it would evaluate future listing petitions, and that the environmental groups "presented no evidence that the DPS Policy has ever been treated (by the Service or parties presenting petitions to list species) as anything other than legally binding." (163)

The Ninth Circuit's decision in Northwest Ecosystems does not allow the inference that the Guidance Memorandum is entitled to Chevron deference. Northwest Ecosystems suggests that policy statements are entitled to Chevron deference if an agency provides for public notice and comment prior to promulgation, represents that it will abide by the statement in the future, and the agency or parties dealing with the agency treat the statement as legally binding. This strikingly new interpretation of Chevron deference indicates that the Guidance Memorandum is still not entitled to such deference in the Ninth Circuit: CEQ did not promulgate the Guidance Memorandum after notice and comment, and because the CEQ does not evaluate EISs, future compliance with the Guidance Memorandum is beyond the scope of CEQ's actions.

V. THE AUTHORITATIVE WEIGHT DUE CEQ'S JUNE 24, 2005 GUIDANCE MEMORANDUM

Two levels of deference are applied to administrative interpretations of statutes and regulations. The stronger is based on the Supreme Court's opinion in Chevron. (164) Auer discusses Chevron-style deference as applied to an agency's interpretation of its own regulations. (165) The weaker level of deference is premised on the Supreme Court's opinion in Skidmore. (166) Each opinion is examined below and then applied to the Guidance Memorandum. The Guidance Memorandum is excluded from consideration for Chevron and Skidmore deference because it is an interpretation of a regulation rather than a statute. While eligible to be considered for Auer deference, courts should not accord such deference to the Guidance Memorandum.

A. Chevron Deference Cannot Apply to the Guidance Memorandum

Chevron deference cannot apply to the Guidance Memorandum because the Guidance Memorandum does not meet two of the basic requirements for such deference: CEQ is not charged with administering NEPA and the Guidance Memorandum was not promulgated pursuant to notice and comment rulemaking. In Chevron, the Supreme Court concluded that Chevron deference only applies to an agency's interpretation of a statute "it is entrusted to administer." (167) Chevron addressed a dispute involving EPA's legislative regulations interpreting the Clean Air Act. (168) Congress explicitly charged EPA with the administration of the Clean Air Act by mandating that EPA promulgate regulations interpreting that act. (169) Congress has not explicitly entrusted any agency with the administration of NEPA. Although NEPA created CEQ, it did not establish CEQ as NEPA's administrating agency in the same explicit way that the Clean Air Act charged the EPA with Clean Air Act administration. Chevron provides that "[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." (170) Chevron also indicates that the legislative delegation of authority to an agency may be implicit, but does not detail what such an implicit delegation would entail. (171) Congress left no explicit gap in NEPA for the CEQ to fill and gave CEQ no authority to promulgate regulations interpreting NEPA. According to the Federal Register, CEQ's authority to promulgate regulations interpreting NEPA springs from an Executive Order, (172) in which Congress had no meaningful voice. This negates the argument that CEQ somehow has implicit authority to promulgate regulations under NEPA; if it did, there would have been no reason for two separate administrations to issue Executive Orders purporting to provide such authority. Therefore, under Chevron, Congress did not give the CEQ authority to make regulations clarifying NEPA. A prominent casebook used in environmental law survey courses, Legal Protection of the Environment, (173) points to NEPA section 202 (174) as the source for CEQ's purported administrative authority regarding NEPA. This section provides:

   There is created in the Executive Office of the President a Council
   on Environmental Quality (hereinafter referred to as the
   "Council"). The Council shall be composed of three members who
   shall be appointed by the President to serve at his pleasure, by
   and with the advice and consent of the Senate. The President shall
   designate one of the members of the Council to serve as Chairman.
   Each member shall be a person who, as a result of his training,
   experience, and attainments, is exceptionally well qualified to
   analyze and interpret environmental trends and information of all
   kinds; to appraise programs and activities of the Federal
   Government in the light of the policy set forth in title I of this
   Act; to be conscious of and responsive to the scientific, economic,
   social, aesthetic, and cultural needs and interests of the Nation;
   and to formulate and recommend national policies to promote the
   improvement of the quality of the environment. (175)

While section 202 charges CEQ with formulating and recommending "national policies to promote the improvement of the quality of the environment," (176) this ambiguous assignment of authority falls short of the "express delegation" (177) required under Chevron if there is no implicit delegation. Moreover, Chevron deference applies only to "legislative regulations," i.e., regulations promulgated pursuant to the procedures for informal rulemaking under the APA. (178) The Guidance Memorandum is not a legislative regulation because it was not promulgated pursuant to informal rulemaking under the APA. (179) Rather, the Guidance Memorandum is a product of "no prescribed process." (180)

Cabinet Mountains and Christensen are useful in analyzing the Guidance Memorandum to demonstrate that it does not qualify for Chevron deference. In Cabinet Mountains, the Supreme Court held that CEQ's Forty Questions was not entitled to deference because it was not a regulation, but an informal statement the court did not find persuasive. (181) Likewise, the Guidance Memorandum is not entitled to Chevron deference because it is not a regulation, (182) but an informal interpretation of a regulation that is unpersuasive given NEPA's stated policy. (183) In Christensen, the D.C. Circuit Court of Appeals held that an opinion letter from the Acting Administrator of the Department of Labor's Wage and Hour Division interpreting the FLSA was not entitled to Chevron deference because it was not arrived at after "for example, a formal adjudication or notice-and-comment rulemaking." (184) Likewise, the Guidance Memorandum is not entitled to Chevron deference because it is an opinion letter and a product of "no set process." (185)

B. Courts Should Not Apply Skidmore Deference to the Guidance Memorandum

Courts should not give the Guidance Memorandum Skidmore deference because the guidance is at odds with NEPA's stated policy; (186) it gives agencies too much discretion to aggregate past actions, preventing meaningful public participation and leading to uninformed decisions. Skidmore (187) provides for a lower degree of deference than Chevron in the case of some administrative interpretations, but does not apply to the Guidance Memorandum. In Skidmore, the Court addressed the authoritative weight due an informal "interpretative bulletin" of the FLSA by the Administrator of the FLSA. (188) The Court provided that

   [T]he rulings, interpretations and opinions of the Administrator
   under this Act, while not controlling upon the courts by reason of
   their authority, do constitute a body of experience and informed
   judgment to which the courts and litigants may properly resort for
   guidance. The weight of such a judgment ... will depend on the
   thoroughness evident in its consideration, the validity of its
   reasoning, its consistency with earlier and later pronouncements,
   and all those factors which give it power to persuade, if lacking
   power to control. (189)

The Court upheld the Administrator's interpretation. (190)

The Guidance Memorandum is different from the FLSA Administrator's interpretation of the FLSA in Skidmore and therefore does not require the same degree of deference. The Court noted that Congress gave the FLSA Administrator "the duties of bringing injunction actions to restrain violations," and that "[p]ursuit of his duties has accumulated a considerable experience in the problems" relating to the subject matter of the FLSA. (191) Congress has neither given the CEQ any prosecutorial duty, nor any other sort of enforcement authority. Therefore the CEQ could not have acquired the type of experience in dealing with NEPA's subject matter that the Court in Skidmore found so important. The CEQ's lack of authority to prosecute under NEPA allows it to promulgate interpretations of NEPA and associated regulations it knows it will not have to defend in court, whereas the FLSA Administrator's interpretations of the FLSA are restricted by the fact that the Administrator may have to defend such interpretations. Furthermore, in Skidmore, the FLSA Administrator interpreted the FLSA, a statute. (192) The Guidance Memorandum is not an interpretation of NEPA, but is rather an interpretation of CEQ regulations, (193) which are not statutes. Finally, the Guidance Memorandum contradicts NEPA's stated policy goal of enhancing "the understanding of the ecological systems and natural resources important to the Nation." (194) Considering the cumulative effects of prior actions in the aggregate does nothing to further the understanding of how these actions individually impact the current environment. Such aggregation deprives decisionmakers of a valuable resource in determining whether to repeat, modify, or prohibit actions taken earlier, essentially limiting the ability of the public and agencies to learn from the past.

C. Courts Should Not Apply Auer Deference to the Guidance Memorandum.

Although Auer stands for the proposition of strong deference to an agency's interpretation of its own regulations, courts should not apply such deference to the Guidance Memorandum. In Auer, the Supreme Court addressed a challenge to the Secretary of Labor's interpretation of his own regulations regarding employee exemption from overtime pay under the FLSA. (195) The Supreme Court noted that "[b]ecause the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless 'plainly erroneous or inconsistent with the regulation.'" (196) The Court then used the dictionary to check the Secretary's interpretation and concluded that the interpretation merited deference because the regulation's key phrase "comfortably [bore]" the Secretary's assigned meaning. (197)

CEQ's interpretation of 40 C.F.R. [section] 1508.7 in the Guidance Memorandum is distinguishable from the Secretary of Labor's interpretation of his regulation in Auer. Most significantly, the language of 40 C.F.R. [section] 1508.7 does not "comfortably bear" the Guidance Memorandum's assigned meaning. 40 C.F.R. [section] 1508.7 provides that "[c]umulative impact is the impact on the environment which results from the incremental impact of the action when added to other past ... actions." (198) The dictionary defines "increment" as "one of a series of regular consecutive additions." (199) It would not be possible to consider a proposed action's incremental impact without considering it In the context of each action in the series of actions preceding it. The use of the word "other" implies that the actions considered are discrete and not part of an aggregated whole; if not, there would be no reason to include "other" in the sentence. This analysis is bolstered when considered in light of NEPA's policy. (200)

The recent Ninth Circuit cases discussed above, Great Basin and NWEA, lend credence to the idea that the policy expressed in the Guidance Memorandum contradicts NEPA. In Great Basin, the Ninth Circuit held an EIS invalid because it aggregated past projects into the environmental baseline rather than considering their individual effects on the cumulative impact of an agency's proposed action. (201) The court held the EIS insufficient, and therefore invalid, in part because it contained "no discussion of the environmental impact from past projects on an individual basis." (202) Employing reasoning similar to that in Great Basin, in NWEA the Ninth Circuit upheld an agency's EIS over plaintiff's challenge that it did not adequately consider the cumulative impact of past projects. (203) Distinguishing Lands Council, (204) the court indicated that NMFS would have been required to catalog (i.e., consider individually) past actions if the EIS had not shown that cumulative impacts of past actions combined with the proposed action would be negligible. (205) The Ninth Circuit rejected the Guidance Memorandum's interpretation of 40 C.F.R. [section] 1508.7 because it contradicted NEPA's policy. District courts within the circuit should therefore reject the Guidance Memorandum itself for the same reason.

VI. CONCLUSION

While other circuits haven't addressed the Guidance Memorandum, they likely will soon. To ensure that government agencies take the requisite "hard look" at proposed actions' cumulative impacts, practitioners should help courts understand that the Guidance Memorandum is excluded from consideration for Chevron deference and is entitled to Skidmore deference at the very most. Practitioners should also argue that the Guidance Memorandum is not entitled to Skidmore deference because it is at odds with NEPA's stated policy; (206) if held as authoritative, the Guidance Memorandum would allow agencies to abdicate their responsibility to consider fully the cumulative impacts of proposed actions, leading to uninformed decisions with unexpected results.

(1) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4370e (2000).

(2) Id. [section] 4332(C).

(3) Id.

(4) Id. [section] 4321.

(5) Id. [section] 4332(C).

(6) Id. [section] 4342.

(7) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

(8) Exec. Order No. 11,514, 35 Fed. Reg. 4248 (Mar. 7, 1970).

(9) Exec. Order No. 11,991, 42 Fed. Reg. 26,967 (May 24, 1977).

(10) See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (considering the authoritative weight of a CEQ regulation published in the C.F.R., the Court provided that "CEQ's interpretation of NEPA is entitled to substantial deference"); cf. Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982) (distinguishing CEQ regulations upheld in Andrus on grounds that they were subject to notice and comment rulemaking because the publication at issue was "merely an informal statement, not a regulation, and ... not ... persuasive authority. Unlike the regulations considered in the Andrus case, it was not the product of notice and comment procedures and does not impose a mandatory obligation on all federal agencies." (citations omitted)).

(11) 40 C.F.R. [section] 1508.25 (2007).

(12) Id. [section] 1508.7 (emphasis added).

(13) 395 F.3d 1019 (9th Cir. 2005); see also discussion infra Part III.A.

(14) Lands Council, 395 F. 3d. at 1024, 1026.

(15) Id. at 1027.

(16) Id. at 1028.

(17) Memorandum from James L. Connaughton, Chairman, Council on Envtl. Quality, to Heads of Fed. Agencies, regarding Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005), available at http://www.nepa.gov/nepa/regs/ Guidance_on_CE.pdf [hereinafter Guidance Memorandum].

(18) Id. at 2.

(19) 456 F.3d 955 (9th Cir. 2006).

(20) 460 F.3d 1125 (9th Cir. 2006).

(21) Great Basin, 456 F.3d at 973; NWEA, 460 F.3d at 1140.

(22) Lands Council, 395 F.3d 1019, 1019 (9th Cir. 2005).

(23) Guidance Memorandum, supra note 17, at 2.

(24) Id.

(25) Great Basin, 456 F.3d at 972-73.

(26) Id. at 960.

(27) Id.

(28) Id.

(29) Id.

(30) Id. at 971.

(31) Id. at 972.

(32) Id. at 971 (quoting Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004)).

(33) Id. (quoting Churchill County v. Norton, 276 F.3d 1060, 1080 (9th Cir. 2001)).

(34) Id. at 973 (quoting Lands Council, 395 F.3d 1019, 1027 (9th Cir. 2005)).

(35) NWEA, 460 F.3d 1125 (9th Cir. 2006).

(36) Id. at 1140.

(37) See id. (providing that "numerous studies in the [EIS] demonstrate that the channel deepening project would have virtually no effect on salinity").

(38) Lands Council, 395 F.3d at 1027 (holding an EIS invalid that had "no discussion of the environmental impact from past projects on an individual basis, which might have informed analysis about alternatives presented for the current project" (emphasis added in NWEA, 400 F.3d at 1140)).

(39) See NWEA, 460 F.3d at 1140 (providing that "in this case, cataloguing past projects' effects on salinity would not have informed assessments about the project and its alternatives, and the [EIS's] analysis of this topic was sufficient").

(40) Id. (citation omitted).

(41) Lands Council, 395 U.S. at 1027.

(42) Id. at 1028.

(43) Id. (citing Muekleshoot Indian Tribe v. U. S. Forest Serv., 177 F.3d 800, 809-10 (9th Cir. 1999)) (providing that "an EIS must catalogue adequately the relevant past projects in the area.... Detail is therefore required in describing the cumulative effects of a proposed action with other proposed actions" (internal citation omitted)).

(44) Id. (emphasis added).

(45) Id.

(46) See supra text accompanying note 24.

(47) E-mail from Horst Greczmiel, Associate Director for NEPA Oversight, Council on Environmental Quality to Author (Jan. 22, 2007, 06:36:15 PST) (on file with author) (providing that in the promulgation of CEQ guidance there is generally no set process. An executive branch agency or CEQ itself "(in the case of the [Guidance Memorandum] the Forest Service at USDA) can initiate discussion and, if CEQ decides to proceed, provide input to CEQ as the guidance is developed. CEQ will then engage the agencies most likely to be impacted by the guidance as it develops the guidance").

(48) Guidance Memorandum, supra note 17, at 1.

(49) 442 U.S. 347, 360 (1979) (considering the authoritative weight of a CEQ regulation published in the Code of Federal Regulations (C.F.R.), the Court provided that "CEQ's interpretation of NEPA is entitled to substantial deference").

(50) Guidance Memorandum, supra note 17, at 2.

(51) Id.

(52) Id. (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1999)).

(53) Id.

(54) 445 F. Supp. 2d 1186 (D. Or. 2006).

(55) Conservation Nw. v. U.S. Forest Serv., No. CV-05-0220-EFS (D. E.D. Wash. Aug. 26, 2005) (order denying plaintiffs' motion for preliminary injunction and continuing injunction for one week).

(56) League of Wilderness Defenders, 445 F. Supp. 2d at 1195.

(57) Id. at n.8.

(58) Id.

(59) See id. (providing "[t]he court notes that the Forest Service retied heavily on a CEQ guidance memorandum ... on cumulative effects which was stricken by this court on January 12, 2006, as a post-hoe rationalization and not an interpretation of law in effect at the time the agency made its decision").

(60) 541 U.S. 752 (2004).

(61) 40 C.F.R. [section] 1508.7 (2007) (quoted in supra text accompanying note 12).

(62) See Public Citizen, 541 U.S. at 757-58 providing:

   The CEQ regulations allow an agency to prepare a more limited
   document, an Environmental Assessment (EA), if the agency's
   proposed action neither is categorically excluded from the
   requirement to produce an EIS nor would clearly require the
   production of an EIS.... If, pursuant to the EA, an agency
   determines that an EIS is not required under applicable CEQ
   regulations, it must issue a "finding of no significant impact"
   (FONSI), which briefly presents the reasons why the proposed agency
   action will not have a significant impact on the human environment.

Id. (internal citations omitted).

(63) Id. at 762.

(64) Id. at 763.

(65) Dep't of Transp. v. Pub. Citizen, 540 U.S. 1088 (2003).

(66) Public Citizen, 541 U.S. at 763.

(67) 40 C.F.R. [section] 1508.7 (2007) (quoted supra in text accompanying note 12).

(68) Public Citizen, 541 U.S. at 770.

(69) Id.

(70) Id.

(71) League of Wilderness Defenders v. U.S. Forest Serv., 445 F. Supp. 2d 1186, 1196 (D. Or. 2006) (citing Public Citizen, 541 U.S. at 769-70).

(72) Id.

(73) See Public Citizen, 541 U.S. at 770 ("We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant 'cause' of the effect.").

(74) See id. at 769-70 (providing that 40 C.F.R. [section] 1508.7 "required FMCSA to consider the 'incremental impact' of the safety rules themselves, in the context of the President's lifting of the moratorium and other relevant circumstances").

(75) See supra text accompanying note 62.

(76) See League of Wilderness Defenders, 445 F. Supp. 2d at 1194 ("Specifically, plaintiffs allege the Forest Service did not consider the cumulative environmental effects of other timber sales and grazing in the [proposed timber harvest's] planning area, and the effect of management activities on water quality.").

(77) Plaintiffs' Reply to Federal Defendant's Response to Plaintiffs' Motion for Summary Judgment & Response to Defendant's Cross-Motion for Summary Judgment, League of Wilderness Defenders v. U.S. Forest Serv., 445 F. Supp. 2d 1186 (D. Or. 2006) (No. 04-982-AS).

(78) Id. at 8-9 (citing Christensen v. Harris County, 529 U.S. 576, 587 (2000)); see also Reno v. Koray, 515 U.S. 50, 61 (1995) (noting "internal agency guidance, which is not 'subject to the rigors of the Administrative Procedure Act, including public notice and comment,' is entitled only to 'some deference'"); Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 157 (1991) (noting "interpretative rules and enforcement guidelines are 'not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers'").

(79) Id. at 9 (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); see also Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 156-57 (1991) (noting "agency 'litigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court"); Lands Council, 379 F.3d 738, 747 (9th Cir. 2004) (providing "judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court") (citation omitted)).

(80) Id. at 8 (citing Wards Cove Packing Corp. v. Nat'l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002) (emphasis added)).

(81) Id. (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1189-90 (9th Cir. 2002)).

(82) Id.

(83) Id. at 10-11.

(84) Id. at 11.

(85) Memorandum in Response to Plaintiffs' Motion for Summary Judgment & in Support of Defendant's Cross-Motion for Summary Judgment, League of Wilderness Defenders v. U.S. Forest Serv., 445 F. Supp. 2d 1186 (D. Or. 2006) (No. 04-982-AS).

(86) 42 U.S.C. [section] 4321 (2000).

(87) 467 U.S. 837 (1984).

(88) 323 U.S. 134 (1944).

(89) 519 U.S. 452 (1997).

(90) Order Denying Plaintiffs' Motion for Preliminary Injunction and Continuing Injunction for One Week, Conservation Nw. v. U.S. Forest Serv. (E.D. Wash. Aug. 26, 2005) (No. CV-05-0220-EFS).

(91) Id. at 6.

(92) Id.

(93) See id. (providing that defendant "contends the [CEQ] recently published a guidance regarding cumulative effects analysis that accords with the scope of past analysis done by the USFS here"); id. at 7 (following discussion of argument based on Lands Council and providing that "[i]n addition, the Court finds the EA's cumulative analysis compliant with CEQ's recent publication, [Guidance Memorandum]" (citation omitted)).

(94) Id. at 15.

(95) Id. at 7.

(96) Id. at 14.

(97) See Or. Natural Res. Council Fund v. Brong, No. CV-04-693-AA, 2004 U.S. Dist. LEXIS 23251, at *42-44 (D. Or. Nov. 8, 2004) (providing in response to defendant BLM's assertion that a major forest fire "reset the successional clock to zero" for purposes of considering salvage sales that "Plaintiffs are correct in that the [EISI did not address the cumulative impacts of additional salvage logging ... defendants have failed to adequately consider the cumulative impacts of several actions in the [project area], specifically, fire suppression activities ... and salvage logging in watersheds that are deferred from timber harvest").

(98) See Conservation Nw., 2005 WL 2077807 at *7 (providing that "the Court finds CEQ's recent June 24, 2005 [Guidance Memorandum] authoritative, especially given that it is the most recent discussion of cumulative effects analysis"); see also id. at *7 n.2 (providing "Lands Council was amended and superseded on January 24, 2005, 395 F.3d 1019 (9th Cir. 2005)").

(99) See discussion infra Part IV.

(100) See Conservation Nw:, 2005 WL 2077807 at *7 (providing that "CEQ's interpretation of NEPA is entitled to substantial deference" (citing Andrus, 442 U.S. 347, 358 (1979))).

(101) See supra note 49.

(102) See supra note 47.

(103) See Andrus, 442 U.S. at 358 (providing that "CEQ's reversal of interpretation occurred during the detailed and comprehensive process, ordered by the President, of transforming advisory guidelines into mandatory regulations applicable to all federal agencies" (emphasis added)).

(l04) 490 U.S. 360 (1989).

(105) See id. at 372 (providing that "[t]he CEQ regulations, which we have held are entitled to substantial deference...." (citing Andrus, 442 U.S. at 358) (emphasis added)).

(106) 685 F.2d 678 (D.C. Cir. 1982).

(107) 529 U.S. 576 (2000).

(108) 513 U.S. 251 (1995).

(109) 475 F.3d 1136 (9th Cir. 2007).

(110) Cabinet Mountains, 685 F.2d at 682.

(111) Id. at 681.

(112) Cabinet Mountains Wilderness v. Peterson, 510 F. Supp. 1186, 1189 (D.D.C. 1981).

(113) See Cabinet Mountains, 685 F.2d at 681-82

   This court has established four criteria for reviewing an agency's
   decision to forego preparation of an EIS: (1) whether the agency
   took a "hard look" at the problem; (2) whether the agency
   identified the relevant areas of environmental concern; (3) as to
   the problems studied and identified, whether the agency made a
   convincing case that the impact was insignificant; and (4) if there
   was impact of true significance, whether the agency convincingly
   established that changes in the project sufficiently reduced it to
   a minimum.

(citing Maryland-National Capital Park and Planning Comm'n v. U.S. Postal Serv., 487 F.2d 1029, 1040 (D.C. Cir. 1973)).

(114) Id.

(115) Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026 (Mar. 23, 1981).

(116) Cabinet Mountains, 685 F.2d at 682 (quoting Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. at 18,038).

(117) Id.

(118) Id

(119) Id.

(120) See id. at 682-83 (providing that "the answer relied on by appellants is 'not at all evident from the underlying regulations.' The sections cited by the CEQ ... construe the terms 'effects' and 'significantly' broadly but do not discuss the appropriateness of mitigation measures." (internal citation omitted) (quoting Cabinet Mountains Wilderness v. Peterson, 510 F. Supp. 1186, 1190 n.4 (D.D.C. 1981))).

(121) Id. at 687.

(122) See discussion infra Part V.A.

(123) See discussion infra Part V.B.

(124) Fair Labor Standards Act of 1938, 29 U.S.C. [section][section] 201-219 (2006).

(125) Christensen, 529 U.S. 576, 578 (2000).

(126) Id. at 580.

(127) Id. at 580-81 (quoting Opinion Letter from Dep't of Labor, Wage, and Hour Div. (Sept. 14, 1992), 1992 WL 845100).

(128) Id. at 581.

(129) Id. (citing Moreau v. Harris County, 945 F. Supp. 1067 (S.D. Tex. 1996)).

(130) Id. (citing Moreau v. Harris County, 158 F.3d 241 (5th Cir. 1998)).

(131) Christensen v. Harris County, 528 U.S. 926, 927 (1999).

(132) Christensen, 529 U.S. at 586.

(133) See discussion infra Part V.A.

(134) Christensen, 529 U.S. at 587-88.

(135) 12 C.F.R. [section] 5.34 (1994).

(136) See Nationsbank, 513 U.S. 251, 254 (1995) (providing "[a]nnuities are contracts under which the purchaser makes one or more premium payments to the issuer in exchange for a series of payments, which continue either for a fixed period or for the life of the purchaser or a designated beneficiary." The National Bank Act does not expressly give national banks the authority to serve as annuities sales agents.); see also id. at 256 (providing "[a]s the administrator charged with supervision of the National Bank Act ... the Comptroller bear[s] primary responsibility for surveillance of 'the business of banking' authorized by [section] 24 Seventh [of the National Bank Act, which describes the powers of national banks]").

(137) National Bank Act, 12 U.S.C. [section] 24 Seventh (1988).

(138) NationsBank, 513 U.S. at 255.

(139) 12 U.S.C. [section] 92 (2000).

(140) NationsBank, 513 U.S. at 255.

(141) Id.

(142) Variable Annuity Life Ins. Co. v. Clarke, 786 F. Supp. 639 (S.D. Tex. 1991).

(143) Variable Annuity Life Ins. Co. v. Clarke, 998 F.2d 1295 (5th Cir. 1993).

(144) NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 511 U.S. 1141 (1994).

(145) NationsBank, 513 U.S. at 256 (citation omitted).

(146) See id. at 256-57 (providing "courts should give great weight to any reasonable construction of a regulatory, statute adopted by the agency charged with [its enforcement.] The [Comptroller] is charged with the enforcement of banking laws to an extent that warrants the invocation of this principle." (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 403-04 (1987))).

(147) See id. at 257 (providing "when we confront an expert administrator's statutory exposition, we inquire first whether 'the intent of Congress is clear' as to 'the precise question at issue.'" (quoting Chevron, 467 U.S. 837, 845 (1984))).

(148) See discussion infra Part IV.A.

(149) Nationsbank 513 U.S. at 264.

(150) Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1143 (9th Cir. 2007).

(151) Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996).

(152) Id.

(153) Endangered Species Act of 1973, 16 U.S.C. [section] 1532 (16) (2000).

(154) Nw. Ecosystem, 475 F.3d at 1143.

(155) Id. at 1141-42.

(156) See id. (noting that the ESA requires USFWS and NMFS to publish guidelines on "criteria for making findings ... with respect to petitions" in the Federal Register (alteration in original) (citing 16 U.S.C. [section] 1533(h)(2)(2000 & Supp. 2004))).

(157) See id. at 1142 (noting that the ESA requires USFWS and NMFS to "provide to the public notice of, and opportunity to submit written comments on, any guideline (including amendment thereto) proposed to be established under this subsection" (citing 16 U.S.C. [section] 1533(h)(2000 & Supp. 2004))).

(158) Id. (citing United States v. Mead Corp., 533 U.S. 218, 232-34 (2001) (holding that letter rulings promulgated without notice and comment were not entitled to Chevron deference)).

(159) Id. ("[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference." (alteration in original) (quoting Christensen, 529 U.S. 576, 587 (2000))); see supra Part IV.B.

(160) Id. (providing "one important reason for denying Chevron deference to policy statements is that they are generally exempt from the public notice and comment procedures required by [section] 553 of the APA" (citing Administrative Procedure Act, 5 U.S.C. [section] 553(b)(3)(A) (2000))).

(161) See id. (providing "[section] 1533(h) of the ESA expressly requires public notice and comment for both the creation and the modification of the DPS Policy. These procedural rigors ... distinguish the DPS Policy from garden-variety policy statements that do not enjoy Chevron status.").

(162) See id. (providing "the Alliance submits that Chevron deference is inappropriate because the DPS policy does not have the 'force of law.' The Alliance emphasizes that the Service had considered adopting the DPS policy as a rule, but ultimately decided to adopt it as a policy statement instead." (citation omitted)).

(163) Id. at 1142-43.

(164) Chevron, 467 U.S. 837, 845 (1984).

(165) Auer, 519 U.S. 452, 457 (1997).

(166) Skidmore, 323 U.S. 134, 140 (1944).

(167) Chevron, 467 U.S. at 844.

(168) Clean Air Act of 1970, 42 U.S.C. [section][section] 7401 7671(q)(2000).

(169) See Chevron, 467 U.S. at 843 ("The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." (omission in original) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974))); see also id. at 846 (providing that "[the Clean Air Amendments of 1970] directed the EPA to promulgate National Ambient Air Quality Standards .... [and to] publish a list of categories of sources of pollution and to establish new source performance standards (NSPS) for each").

(170) Id. at 843-44.

(171) See id at 844.

(172) See National Environmental Policy Act--Regulations, 43 Fed. Reg. 25,230 (June 9, 1978) (codified at 40 C.F.R. pts. 1500-08) ("These regulations were developed in response to Executive Order 11991, issued by President Carter in 1977, and implement 'the procedural provisions of the Act.'"); see also supra text accompanying note 9.

(173) CRAIG N. JOHNSTON, WILLIAM F. FUNK & VICTOR B. FLATT, LEGAL PROTECTION OF THE ENVIRONMENT 83 (2005).

(174) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4342 (2000).

(175) Id.

(176) Id.

(177) Chevron, 467 U.S. 837, 843 (1984).

(178) Id. at 844.

(179) See supra note 47.

(180) Seem

(181) Cabinet Mountains, 685 F.2d 678, 682 (D.C. Cir. 1982).

(182) See supra note 47.

(183) See supra text accompanying note 4.

(184) Christensen, 529 U.S. 576, 587 (2000).

(185) See supra note 47.

(186) See supra text accompanying note 4.

(187) Skidmore, 323 U.S. 134 (1944).

(188) Id. at 138.

(189) Id. at 140.

(190) Id.

(191) Id. at 137.

(192) Id. at 138.

(193) See supra text accompanying note 12.

(194) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4321 (2000).

(195) Auer, 519 U.S. 452, 454-55 (1997).

(196) Id. at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)).

(197) Id.

(198) 40 C.F.R. [section] 1508.7 (2007) (emphasis added).

(199) WEBSTER'S NEW COLLEGIATE DICTIONARY 578 (Henry Bosley Wooff et al. eds., G. & C. Merriam Co. 1979).

(200) See supra text accompanying note 4.

(201) Great Basin, 456 F.3d 955, 973 (9th Cir. 2006).

(202) Id. (quoting Lands Council, 395 F.3d 1019, 1027 (9th Cir. 2005)).

(203) NWEA, 460 F.3d 1125, 1140 (9th Cir. 2006).

(204) Lands Council, 395 F.3d at 1027 (holding an EIS invalid that had "no discussion of the environmental impact from past projects on an individual basis, which might have informed analysis about alternatives presented for the current project") (emphasis added).

(205) See NWEA, 460 F.3d at 1140 (providing that "in this case, cataloguing past projects' effects on salinity would not have informed assessments about the project and its alternatives, and the [EIS'] analysis of this topic was sufficient").

(206) See supra text accompanying note 4.

JOHN C. GROTHAUS, Member, Environmental Law, 2006-2007; J.D. and Certificate in Environmental and Natural Resources Law expected 2008, Northwestern School of Law of Lewis & Clark College; B.A. 2002, Pomona College.