A question that has long eluded definitive judicial resolution is whether a federal agency's failure to prevent an environmental significant state or private activity from occurring can constitute major federal action for which an environmental impact statement (EIS) must be prepared under §102(2)(C) of the National Environmental Policy Act (NEPA).¹ It is well established that the Act requires a federal agency to prepare an EIS analyzing such a non-federal project when it proposes to approve financial assistance or issue a permit without which the activity could not proceed.² Moreover, an agency's failure to exercise its authority to stop a state or private action from taking place may obviously have much the same practical effect on the environment as issuance of a federal license or permit for the project. Those courts that have addressed the issue, however, have divided over whether such "inaction" can be considered "major Federal action" under NEPA.³

The difficulty of this problem has been illustrated most dramatically by conflicting decisions from courts on both coasts in several cases concerning the Department of the Interior's refusal to prepare environmental impact statements in conjunction with its failure to invoke its power under the Federal Land Policy and Management Act (FLPMA)⁴ to prevent state-sponsored aerial wolf hunt programs from going forward on certain federally managed lands in Alaska. A recent ruling by the District of Columbia Circuit Court of Appeals appears to reconcile the two previously divergent lines of authority and strongly reinforces the view that such agency inaction is generally not subject to NEPA's EIS requirements. The court's opinion also represents one of the first judicial examinations of federal versus state roles in managing wildlife on federal lands under FLPMA. Some uncertainty nevertheless remains as to precisely how agency inaction and action are to be differentiated for NEPA purposes.