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Extending Marsh's "arbitrary and capricious" review to an initial EIS decision.

I. INTRODUCTION

Since its inception in 1970, the National Environmental Policy Act (NEPA)(1) has focused government and public attention on the environmental effects of proposed agency action. NEPA establishes that it is "the continuing policy of the Federal Government . . . to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans."(2) NEPA requires agencies to prepare an Environmental Impact Statement (EIS) for proposed "major federal actions significantly affecting the quality of the human environment."(3) This creates a judicially enforceable duty for agencies to "take a |hard look' at the environmental effects of their planned action."(4)

What constitutes a "hard look"? Reviewing courts apply different standards of review to assess an agency's determination not to prepare an initial EIS. Some circuits apply a more stringent "reasonableness" standard, while others use the more deferential "arbitrary and capricious" standard.(5)

The Supreme Court has refused to determine directly the appropriate standard for judicial review of an agency's failure to prepare an initial EIS.(6) However, in Marsh v. Oregon Natural Resources Council,(7), the Supreme Court held that review of an agency's failure to supplement the EIS is "controlled by the |arbitrary and capricious' standard" of review.(8) In 1992 the Ninth Circuit, in Greenpeace Action v. Franklin,(9) extended Marsh to agency failure to prepare an initial EIS.(10)

This Chapter examines Greenpeace and its probable effect on future Ninth Circuit decisions. Section II reviews Marsh. Section III offers a brief background of Greenpeace and describes how the Ninth Circuit applied Marsh's reasoning to the context of an initial EIS context. Section IV outlines the probable effect of Greenpeace on future Ninth Circuit decisions. Section V concludes that Greenpeace's holding will increase early involvement by interested parties in the NEPA process, ensuring more successful challenges, and furthering NEPA'S objectives.

II. Marsh v. Oregon Natural Resources Council

In 1989, the U.S. Supreme Court decided Marsh v. Oregon Natural Resources Council, establishing a single standard for review of agency decisions regarding supplementation of an existing EIS. The Court held that an agency determination that an existing EIS need not be supplemented is to be reviewed under the "arbitrary and capricious" standard of section 706(2)(A) of the Administrative Procedure Act (APA).(11)

Marsh arose out of a controversial decision to construct a dam at Elk Creek in the Rogue River Basin of southwest Oregon. The plans for the Elk Creek Dam called for a 238 foot high concrete structure that would control run-off from the Elk Creek watershed. The Army Corps of Engineers completed an EIS for the project and began initial preparation of the watershed in 1971. In 1980, the Corps issued a supplemental EIS (SEIS) which paid special attention to the dam's potential effect on water quality, fish production, and fishing.(12) While the SEIS predicted that the dam would not have a major effect on fish production, it speculated that the dam's effect on turbidity, when combined with two other dams already completed in the Rogue river basin, might impair fishing.(13) In 1982, the Corps made the formal decision to proceed with construction on the Elk Creek Dam, concluding that the dam would serve the overall public interest.(14) In 1985, Congress appropriated funds for the project(15) and four Oregon non-profit corporations, including Oregon Natural Resources Council (ONRC), filed suit.(16) ONRC argued that the Corps had violated NEPA by not preparing a second SEIS to review new 1980 information that raised additional concerns regarding the dam's possible adverse affect on fishing. The district court denied relief, holding that the Corps' decision not to prepare a second SEIS was reasonable.(17) On ONRC's appeal, the Ninth Circuit remanded the question of the Corps' failure to prepare the SEIS, holding that the new information was significant and must be addressed.(18) The Corps then appealed to the U. S. Supreme Court, which granted certiorari.(19)

Writing for the Court, Justice Stevens stated that "NEPA does not work by mandating that agencies achieve particular substantive environmental results,"(20) but noted that "NEPA does require that agencies take a |hard look' at the environmental effects of their planned action, even after a proposal has received initial approval."(21) However, Justice Stevens also found that a challenge to an agency decision not to supplement an existing EIS "is a classic example of a factual dispute the resolution of which implicates substantial agency expertise."(22) Thus, he concluded, "so long as the Corps' decision not to supplement the [EIS] was not |arbitrary or capricious,' it should not be set aside."(23)

In response to the ONRC's argument that the Supreme Court should not upset the Ninth Circuit's reasonableness standard, the Court asserted that "the difference between the |arbitrary and capricious' and |reasonableness' standards is not of great pragmatic consequence. Accordingly, our decision today will not require a substantial reworking of long-established NEPA law."(24)

Despite the Court's decision to review under the more deferential arbitrary and capricious standard, it warned that "courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance - or lack of significance - of the new information.(25) This emphasis on a reasoned decision indicates that regardless of the standard of review, ultimately the Court's judgment is based on whether "agency decisions are founded on a reasoned evaluation |of the relevant factors.'"(26) The Court concluded that "the Corps conducted a reasoned evaluation of the relevant information and reached a decision that, although perhaps disputable, was not |arbitrary or capricious.'"(27)

In dicta, the Court asserted that the decision whether to prepare a SEIS is similar to the decision whether to prepare an initial EIS because the agency's decision turns on the value of information to the pending decision.(28) Thus, the U. S. Supreme Court opened the door for lower courts to extend Marsh's arbitrary and capricious standard of review to the question of whether an agency's decision not to prepare an initial EIS violated NEPA. In 1992, the Ninth Circuit took the opportunity to apply Marsh in precisely that manner.

III. Greenpeace Action v. Franklin

In 1978, the North Pacific Fishery Management Council (Council) issued its Fishery Management Plan and an EIS for the Gulf of Alaska pursuant to the Fisheries Conservation Management Act.(29) The plan provided that the Council set annual harvest levels of various species. During late 1990 and early 1991, the Council proposed an increase in the total allowable catch (TAC) of pollock for the 1991 harvest season.(30) Greenpeace objected to the Council's proposed 1991 TAC, alleging that the increase in the TAC would jeopardize the Stellar sea lion, a "threatened species" under the Endangered Species Act(31) (ESA) and that implementing the increase without preparing an EIS would violate NEPA.(32)

During the process of setting the 1991 pollock harvest levels, the Council consulted with the National Marine Fisheries Service (NMFS), and issued a biological opinion concluding that the 1991 TAC was not likely to jeopardize the Steller sea lion if certain mitigation measures were taken to minimize the effects of the increase. NMFS then produced an environmental assessment (EA), which analyzed the impact of the increased pollock TAC on the environment, and concluded that an EIS was unnecessary. The Council agreed, and adopted the increased TAC. One week later, Greenpeace filed suit. The district court held that the Council's decision not to undertake an EIS was not arbitrary or capricious because the Council adequately assessed the impact of the increased TAC on the environment, and had taken protective measures to reduce the impact on the Stellar sea lion.(33) Greenpeace appealed to the Ninth Circuit.

The Ninth Circuit, in an opinion by Judge Hall, first addressed the standard of review for an agency decision not to prepare an initial EIS. The court explained that the Supreme Court's decision in Marsh required it to re-examine its well established practice of reviewing under a reasonableness standard.(34) The court decided that although Marsh reviewed an agency decision not to supplement an existing EIS, Marsh's reasoning appeared "to be equally apposite to cases that present challenges to an agency's decision not to prepare an initial EIS."(35) The same "rule of reason" applies whether deciding to prepare an initial EIS or to supplement an existing EIS.(36) In both cases, an agency's "[a]pplication of the |rule of reason' thus turns on the value of information to the still pending decision making process."(37) Important to the court's reasoning was the presumption that "Greenpeace's challenges to [NMFS'] failure to prepare an EIS turn on factual determinations, not legal principles."(38) The court concluded that "when a litigant challenges an agency determination on grounds that, in essence, allege that the agency's |expert review . . . was incomplete, inconclusive, or inaccurate,' the greater degree of deference expressed by the arbitrary and capricious standard is appropriate."(39)

IV. Extending Marsh: The Impact on Future Ninth Circuit

Decisions

The Ninth Circuit extended Marsh's reasoning to review of an agency's failure to prepare an initial EIS. Before Greenpeace, and as recently as April 1992, the Ninth Circuit reviewed agency decisions not to prepare an initial EIS under a reasonableness standard.(40) The reasonableness standard reflected concern that NEPA's intent would be frustrated if inappropriate agency decisions not to prepare EISs were not subjected to impartial review.(41) The Ninth Circuit previously had found the reasonableness standard justified because of NEPA's requirement that federal agencies prepare EISs on all proposed actions which may significantly affect the human environment.(42) Although the Greenpeace court recognized the mandatory nature of NEPA's procedural requirements, it emphasized the factual nature of NEPA threshold determinations and the more deferential principle that "an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive."(43)

The Greenpeace decision is a departure from Ninth Circuit precedent, but changing the standard from reasonableness to arbitrary and capricious will not significantly change the court's approach to the issue.(44) The reasonableness standard was espoused in pre-Greenpeace Ninth Circuit decisions as ensuring impartial review,(45) with the court's inquiry focusing on whether the agency has "|reasonably concluded' that the project will have no significant adverse environmental consequences."(46) The pre-Greenpeace rule was aimed at determining whether an agency took a "hard look" at the potential environmental consequences of its action.(47) If "substantial questions" were raised about whether significant environmental impacts might occur, "or if the agency fail[ed] to |supply a convincing statement of reasons why potential effects [were] insignificant,'" the agency's failure to prepare an EIS was found unreasonable.(48) The court also considered the existence of a public controversy in determining the reasonableness of an agency's decision.(49) The remainder of this Section examines whether the Ninth Circuit's change to the arbitrary and capricious standard will have a practical effect on future decisions.

A. Hard Look Doctrine and Convincing Statement of Reasons

Although the reasonableness standard may have been interpreted as allowing the court to establish a low threshold for requiring an EIS, pre-Greenpeace courts did not claim to have the authority under NEPA to substitute their judgment for that of an agency.(50) Indeed, the courts' main objectives were to ensure that the agency took the requisite "hard look" at environmental consequences.(51) Under the Ninth Circuit's pre-Greenpeace decisions, a hard look required an agency decision to be "fully informed and well considered"(52) and supported by "a convincing statement of reasons why potential effects are insignificant."(53) An agency was likely to meet the reasonableness standard so long as it followed a procedure which lead to a "reasoned analysis of the evidence before it."(54)

The arbitrary and capricious standard requires agency decisions to be similarly "founded on a reasoned evaluation" of environmental consequences.(55) Although the Ninth Circuit now stresses the importance of agency expertise, this may not be a practical departure from pre-Greenpeace case law. Under the reasonableness standard, as the court notes, the Ninth Circuit has only once set aside an agency decision not to prepare an EIS after the agency prepared an EA.(56)

Indeed, preparation of an adequate EA may satisfy the requisite of a reasoned analysis in the Ninth Circuit because the EA constitutes the administrative record courts look to for justification of an agency's conclusions.(57) Unless an agency fails to address crucial factors in its EA, the Ninth Circuit has been reluctant to set aside an agency decision not to prepare an EIS.(58) An EA creates a reviewable environmental record for a court to consider and lends credibility to agency determinations. Without this reviewable record, it is likely that the court will find the agency has not taken the requisite hard look under either a reasonableness or an arbitrary and capricious standard of review.(59)

Before the Greenpeace decision, an agency's failure to prepare an EIS was considered unreasonable if the agency did not "supply a convincing statement of reasons why potential effects are insignificant."(60) In Greenpeace, the court emphasized that NMFS' conclusions about the TAC increase were based on "substantial - though not dispositive - scientific data, and not on mere speculation."(61) The analysis appears similar, and it is arguable that NMFS' decision not to prepare an EIS in this case would have passed the court's review even under the less deferential reasonableness standard.

B. Substantial Questions Whether Significant Effects May

Occur

Prior to Greenpeace, to determine the reasonableness of an agency's conclusion that an action would not have a significant effect on the environment, the Ninth Circuit looked to whether a challenger raised "substantial questions" as to whether significant effects may occur.(62) Substantial questions are those "alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor."(63) Under the reasonableness standard, when a challenger alleged substantial questions, Ninth Circuit courts required agencies to state clearly why the consequences of a major federal action would be insignificant.(64) Thus, an adequate EA had to address questions presented to an agency at the time its decision was made.(65)

Despite Greenpeace's allegations that NMFS did not refute evidence of a causal connection between pollock fishing and the Stellar sea lion's decline, the court found that NMFS did not fail to address any crucial factors in its EA.(66) The court emphasized that NEPA does not require that the reviewing court decide whether an EA is based on the best scientific data or methodology, and concluded that any uncertainty or questions raised by Greenpeace merely represented a difference in scientific opinion which the court was unqualified to settle.(67) Greenpeace seems to say that the court will consider only substantial questions not addressed by the agency in an EA if they were raised by members of the public before the decision was made.(68) by establishing the arbitrary and capricious standard as the proper standard of judicial review of an agency decision not to prepare an EIS, Greenpeace does not substantially depart from the Ninth Circuit's precedent on this issue.

C. Substantial Public Controversy

Another factor in evaluating whether an EIS must be prepared is whether a public controversy exists.(69) A proposed action is controversial if "a substantial dispute exists as to [its] size, nature, or effect."(70) Greenpeace does not change established Ninth Circuit case law regarding what constitutes a "substantial dispute." Where an agency receives numerous critical responses to its EA, a substantial dispute may exist.(71) However, where virtually all interested parties agree on the adequacy of the EA, the plaintiff's criticisms alone are insufficient to establish a substantial dispute.(72) Greenpeace argued that its experts' affidavits demonstrated a controversy within the scientific community as to whether pollock fishing had significant environmental consequences. The court expressly rejected this argument, maintaining that Greenpeace's experts merely established "controversy post hoc."(73) The court noted that it would refuse to "characterize an agency's action as arbitrary' for its failure to consider views that were never presented to it."(74) Although Greenpeace's tardy criticisms were brushed aside, the court's statement affirms that timely criticisms of an agency's EA will be considered, even under the arbitrary and capricious standard. However, if an agency offers a well-reasoned explanation showing why the criticisms are insufficient to create a public controversy, the court likely would find NEPA satisfied under either standard of review.(75)

D. Review Beyond the Record

Normally, a reviewing court limits its scope to the administrative record.(76) In Greenpeace, however, the court considered plaintiff's affidavits that were not part of EA for the original proposed TAC, and which raised questions about NMFS' analysis and conclusions regarding the impact of the 1991 TAC and the effectiveness of the mitigation measures.(77) Review may extend beyond the administrative record in NEPA cases where the plaintiff alleges that an agency has "swept 'stubborn problems or serious criticism . . . under the rug.'"(78) However, NMFS did not contend that the district court erred in considering Greenpeace's outside affidavits and instead characterized the affidavits as merely representing a difference of scientific opinion.(79) Although the issue never arose directly, a reviewing court is not required to look outside the administrative record in NEPA cases if the agency's decision can be adequately explained on the administrative record.(80) The Greenpeace court found that despite some differences in opinion with Greenpeace's experts, NMFS' conclusions were based on "substantial - though not dispositive - scientific data, and not on mere speculation."(81) The court deferred to NMFS' conclusions that the proposed 1991 TAC, in combination with the mitigation measures, would not have a significant impact.(82) The court found that NMFS indeed had considered scientific data that Greenpeace contended had not been considered.(83) Additionally, Greenpeace's affidavits did not directly address the main issue of whether the 1991 TAC, as implemented, posed a danger to the Stellar sea lion. Rather, the affidavits took issue with methodology and with NMFS' failure to refute evidence of a causal connection between pollock fishing and injury to the Stellar sea lion.(84)

Given the more deferential standard of review, it is difficult to tell exactly how the court will react to agency efforts to limit the scope of review to the administrative record. However, it is possible that the court's deferential treatment of NMFS' analysis simply made it unnecessary for NMFS to challenge the district court's consideration of Greenpeace's outside affidavits.

V. CONCLUSION

The Ninth Circuit's shift to the arbitrary and capricious standard of review will serve to increase early public comment to agencies that are deciding whether to prepare EISs, but will have little other practical effect. The court will still take a hard look at an agency's determination and consider whether substantial questions were raised regarding the action's impact on the environment and whether a public controversy exists. It is important to note that the reasonableness standard allowed a court to consider whether the proper factors were considered reasonably, which seems in theory, substantially different from the court's latitude under an arbitrary and capricious standard. However, even the reasonableness standard did not grant a court the authority to overturn an agency's well-reasoned decision. Indeed, as applied by the Ninth Circuit, the reasonableness standard did not allow an agency's decision to be overturned solely on post hoc criticisms raised by a citizens group. The Ninth Circuit's decision in Greenpeace, to a large part, relied on fundamental pre-Greenpeace case law.

Thus, Greenpeace's practical effect will be to further focus the issue on the adequacy of the EA, the purpose of which is to provide a basis for determining whether an EIS is necessary.(85) If an agency fails to prepare an EA at all, the agency's decision not to prepare an EIS would be set aside under either a reasonableness or an arbitrary and capricious standard because there would be no agency reasoning for the court to review. If an agency prepares an EA which insufficiently addresses questions or factors raised during the EA process by the challenger, comment agencies, or the scientific community, the agency's decision would be set aside under either a reasonableness or an arbitrary and capricious standard. To overcome the more deferential treatment of the Greenpeace approach, challengers must show shortcomings in the agency's EA or FONSI based on the information the challengers presented to the agency before the decision was made.

This type of pleading is harmonious with NEPA and established case law under either standard. Therefore, environmentalists should become involved in the NEPA process during the initial draft EA comment period to ensure that their opinions will be considered by reviewing courts. Reliance on supplementing the record with outside affidavits does not necessarily assure successful challenges. Early involvement best ensures that the court will consider plaintiffs views under arbitrary and capricious review, thus creating an opportunity for more successful challenges.

(1.) 42 U.S.C. $Z 4321-4370a (1988). For more information on NEPA, see Symposium on NEPA at Twenty: The Past, Present and Future of the National Environmental Policy Act, 20 Envtl. L. 447 (1990). (2.) 42 U.S.C. $S 4331(a). (3.) 42 U.S.C. $S 4332(C)(i). (4.) See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1988). (5.) See Gee v. Boyd, 471 U.S. 1058, 1059 (1985) (White, J., dissenting). (6.) See River Rd. Alliance v. United States Army Corps of Engineers, 475 U.S. 1055 (1986); Gee v. Boyd, 471 U.S. 1058 (1985). (7.) 490 U.S. 360 (1988). (8.) Id. at 376. (9.) 982 F.2d 1342 (9th Cir. 1992). (10.) Greenpeace deals only with the question of whether a challenge to an agency's failure to prepare an initial EIS falls within Marsh's rule. The Greenpeace court distinguished review of an agency determination that its proposed action will have no significant impact from review of other questions regarding NEPA applicability, such as whether a major federal action exists or review of alternatives selected for discussion in an EIS. Greenpeace, 982 F.2d at 1350 n. 8. (11.) Marsh, 490 U.S. at 374. Section 706(2)(A) of the APA (codified at 5 U.S.C. $S 706(2)(a)) states, in pertinent part: "The reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (12.) Marsh, 490 U.S. at 365. (13.) Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 365-66 & n.6 (1989). (14.) Id. at 367. (15.) Act of Aug. 15, 1985, Pub. L. 99-88, 99 Stat. 314. (16.) Oregon Natural Resources Council v. Marsh, 628 F. Supp. 1557 (D. Or. 1986) aff'd in part, rev'd in part, 832 F.2d 1489 (1987), rev'd, 490 U.S. 360 (1989). (17.) Id. at 1568. (18.) Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1496 (9th Cir. 1987), rev'd, 490 U.S. 360 (1989). (19.) 487 U.S. 1217 (June 27, 1988) (No. 87-1704). (20.) Oregon Natural Resources Council v. Marsh, 490 U.S. 360, 371 (1989). (21.) Id. at 374. (22.) Id. at 376. (23.) Id. at 377. (24.) Id. at 377-78 n.23 (citations omitted). (25.) Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). (26.) Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)). (27.) Id. at 385. (28.) Id. at 374. (29.) 16 U.S.C. $S 1852(h)(1) (1988). (30.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1346 (9th Cir. 1992). (31.) 16 U.S.C. $Z 1531-1544 (1988). Greenpeace's ESA claim is outside the scope of this comment. (32.) Greenpeace, 982 F.2d at 1346. (33.) Id. at 1347-48. (34.) Id. at 1349. See, e.g., Foundation for N. Am. Wild Sheep v. United States, 681 F.2d 1172, 1177 n.24 (9th Cir. 1982); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). (35.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1349 (9th Cir. 1992). (36.) Id. at 1350 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74 (1989)). (37.) Marsh, 490 U.S. at 374. (38.) Greenpeace, 982 F.2d at 1349. (39.) Id. at 1350 (citing Marsh, 490 U.S. at 376-77). (40.) See, e.g., Seattle Community Council Fed'n v. Federal Aviation Admin., 961 F.2d 829, 832 (9th Cir. 1992); Foundation for N. Am. Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1177 (9th Cir. 1982) ("It is firmly established in this Circuit that an agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable."); Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988); Northwest Envtl. Defense Ctr. v. Brennen, 958 F.2d 930, 936 (9th Cir. 1992). (41.) See Natural Resources Defense Council v. Duvall, 777 F. Supp. 1533, 1537 (E.D. Cal. 1991) (impartial review is critical to the spirit of NEPA). (42.) See Wild Sheep, 681 F.2d at 1177 n.24. See also Gee v. Boyd, 471 U.S. 1058, 1060 (1985) ("Courts that have chosen the |reasonableness' standard have relied on the importance of the |basic jurisdiction-type conclusion involved,' or on the |mandatory nature' of the statute's language." (citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973) and Wild Sheep, 681 F.2d at 1177 n.24)). (43.) Greenpeace, 982 F.2d at 1350 (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. at 378). (44.) See id. at 377 n.23. (45.) See Natural Resources Defense Council, 777 F. Supp. at 1537 (citing Foundation for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182-83 (9th Cir. 1982)). (46.) Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (citing San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980)). (47.) Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985). (48.) Seattle Comm. Council Fed'n v. FAA, 961 F.2d 829, 832 (9th Cir. 1982) (quoting Save the Yaak, 840 F.2d 714, 717). (49.) LaFlamme v. FERC, 852 F.2d 389, 400-01 (9th Cir. 1988). (50.) E.g., Sierra Club v. United States Forest Service, 843 F.2d 1190, 1192 (9th Cir. 1988) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). (51.) E.g., id. (52.) Friends of Endangered Species v. Jantzen, 760 F.2d 976, 985 (9th Cir. 1985) (citing Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 435 U.S. 519, 558 (1978)). (53.) Seattle Comm. Council Fed'n v. FAA, 961 F.2d 829, 832 (quoting Save the Yaak, 840 F.2d at 717). (54.) Jantzen, 760 F.2d at 786. (55.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74). (56.) Id. 982 F.2d at 1352 & n.9. The court stated that in Wild Sheep the agency determination was found unreasonable because certain factors essential to "truly informed decision" were not considered. (57.) See Natural Resources Defense Council v. Duvall, 777 F. Supp. 1533, 1539 (E.D. Cal. 1991); Greenpeace, 982 F.2d at 1352 & n.9. (58.) See supra note 56. (59.) Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985). See Greenpeace Action v. Franklin, 982 F.2d 1342, 1352 n.9 (9th Cir. 1992) for several Ninth Circuit decisions setting aside agency determinations not to prepare an EIS where agency had not prepared an EA. (60.) Seattle Comm. Council Fed'n v. FAA, 961 F.2d 829, 832 (9th Cir. 1992) (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988)); see also Michael C. Blumm & Bill Kloos, Small Scale Hydropower and Anadromous Fish: Lessons and Questions From the Winchester Dam Controversy, 16 Envtl. L. 583 (1986). (61.) Greenpeace, 982 F.2d at 1351. (62.) Foundation for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1177,7-78 (9th Cir. 1982). (63.) Id. at 1178 (quoting Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 597 (9th Cir. 1981)). (64.) See LaFlamme v. FERC, 852 F.2d 389, 399 (9th Cir 1988). (65.) See, e.g., id. at 400-01 (agency failed to adequately consider in EA questions raised by plaintiff) and Wild Sheep 681 F.2d at 1178 (agency's EA failed to address issues raised in response to draft EA); see also Greenpeace, 982 F.2d at 1351. (66.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1351 (9th Cir. 1992). (67.) Id. (68.) The court might have been more willing to address differences in scientific opinion between Greenpeace and the Council if an "expert" agency such as the state fish and wildlife agency had agreed with Greenpeace's assertions. See generally Michael C. Blumm & Stephen R. Brown, Pluralism and the Environment: The Role of Comment Agencies in NEPA Litigation, 14 Harv. Envtl. L. Rev. 277 (1990) [hereinafter Blumm & Brown] (proposing that opposition of another agency is key to finding NEPA violations). (69.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1352 (9th Cir. 1992). (70.) Id. (internal quotations omitted). (71.) Id. at 1352-53 (citing Foundation for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182 (9th Cir. 1982)). (72.) Id. at 1353 (citing Friends of Endangered Species v. Jantzen, 760 F.2d 976, 986-87 (9th Cir. 1985)). See also Blumm & Brown, supra note 68, at 299. (73.) Greenpeace, 982 F.2d at 1352. (74.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1353 n.12 (9th Cir. 1992) (distinguishing LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988), where plaintiff made objections known to agency before the rule in question was made). See also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). (75.) See LaFlamme, 852 F.2d at 401 (NEPA requires well reasoned explanation of why plaintiffs points do not create public controversy). (76.) See Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986). (77.) Greenpeace, 982 F.2d at 1351. (78.) County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (9th Cir. 1977) (quoting Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973)). (79.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1351 (9th Cir. 1992). (80.) See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir. 1988). See also David Sive, The Problem of the "Record" in Judicial Review of Administrative Action, in 2 Environmental Litigation 1089 (ALI-ABA Course of Study, June 20-24, 1988) (stating that it has been frequently held in NEPA actions that the nature of the case, i.e. challenges to the adequacy of part of the administrative record itself, precludes limitation to the administrative record). (81.) Greenpeace, 982 F.2d at 1351. (82.) Id. The service recommended a temporal and geographical harvest allocation as well as a 10 nautical mile no-trawl zone around Stellar sea lion rookeries. Id. at 1346. (83.) Id. at 1351. (84.) Greenpeace Action v. Franklin, 982 F.2d 1342, 1351 (9th Cir. 1992). (85.) See Foundation for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir. 1982).
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Title Annotation:1992 Ninth Circuit Environmental Review; Environmental Impact Statement
Author:Whetstone, Craig
Publication:Environmental Law
Article Type:Case Note
Date:Jul 1, 1993
Words:5279
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