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Laub v. EPA

Citation: 33 ELR 20267
No. No. 02-15104, (9th Cir., 09/08/2003)

The court holds that farmers' National Environmental Policy Act (NEPA) action challenging a proposed federal and state plan for managing the California San Francisco Bay/Sacramento-San Joaquin Delta (Bay-Delta) water resources is ripe for judicial review before any site-specific action is taken. The farmers argued that the environmental impact statement (EIS) and record of decision (ROD) prepared by the CALFED Bay-Delta program--a cooperative effort of 18 state and federal agencies with responsibilities over the California Bay-Delta--violated NEPA's procedural requirements. The district court held that the EIS and ROD were not final agency action ripe for review and that it lacked jurisdiction over the state agencies, and the farmers appealed. The district court erred in holding that the farmers' procedural claim was not ripe. The question of whether an agency complied with NEPA’s procedural requirements in preparing a programmatic EIS is immediately ripe for review before site-specific action is taken. The EIS' preferred program alternative will influence subsequent site-specific actions. Likewise, because the ROD pre-determines the future through the selection of a long-term plan, it is ripe for review. In addition, the court reverses the district court’s determination that certain land and water acquisitions undertaken by state agencies pursuant to the program did not constitute a federal action. The record is not sufficient to ascertain whether the state agencies' participation in the program is sufficiently independent of federal control to escape NEPA's requirements. Therefore, the case was remanded for discovery on this question.

Counsel for Plaintiffs
Nancy N. McDonough, General Counsel
California Farm Bureau Federation
2300 River Plaza Dr., Sacramento CA 95833
(916) 561-5650

Counsel for Defendants
Thomas J. Sansonetti
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000