Jump to Navigation
Jump to Content

National Wildlife Fed'n v. Babbitt

ELR Citation: 24 ELR 20200
Nos. No. 88-0301, 37 ERC 1670/(D.D.C., 07/30/1993)

The court holds that the U.S. Department of the Interior's (DOI's) February 1986 decision to resume coal leasing under its 1982 federal coal leasing program without adding wetlands unsuitability to its criteria for making land use decisions was arbitrary and capricious. In December 1987, DOI promulgated final rules that amended its 1982 regulations governing the federal program's unsuitability criteria and multiple-use trade off screens. The final rules were based, in part, on DOI's February 1986 decision not to promulgate any new unsuitability criteria for the land use planning stage, but to leave consideration of such criteria, including reclaimability and wetlands, to the multiple-use phase.

Following its decision in Natural Resources Defense Council v. Jamison, 23 ELR 20406 (1982), the court first holds that res judicata bars plaintiffs' challenge to DOI's decision not to include a reclaimability unsuitability criterion in the 1987 rulemaking. In that case, the court held that DOI's decision was consistent with the Surface Mining Control and Reclamation Act.

The court then holds that DOI's decision that its 1987 unsuitability criteria rulemaking did not require a full environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) was not arbitrary and capricious. The decision to promulgate the 1987 regulations was part of a process to review the 1982 coal leasing program that began in 1985, involving the issuance of a draft EIS, a review of unsuitability criteria, the issuance of a final EIS supplement, and a February 1986 record of decision (ROD) on the final EIS supplement. The nearly two-year delay in publishing the proposed rules to implement the 1986 ROD does not make those regulations a new "proposal" for NEPA purposes. Additionally, DOI's decision not to prepare a supplemental EIS for its 1987 rulemaking was not arbitrary and capricious, because no substantial changes in the proposed action or significant new circumstances or information arose between the February 1986 ROD and the December 1987 final rules.

Finally, the court holds that the February 1986 decision not to include a wetlands unsuitability criterion without adequately explaining the decision was arbitrary and capricious. The court holds that agency action taken pursuant to Executive Order No. 11990—which requires agencies to take action to minimize destruction, loss, or degradation of wetlands while engaging in land resources planning—has the force and effect of law, imposes a non-discretionary duty on agencies, and is reviewable under §706(2) of the Administrative Procedure Act. The court holds that DOI erred by failing to consider evidence about the functioning of the land use planning system and failing to adequately respond to evidence regarding the necessity of a wetlands unsuitability criterion. DOI's assertion that wetlands protection could be adequately addressed in the multiple-use trade off screen process is not supported by evidence in the record. Moreover, DOI did not consider the relevant factors and alternatives in making its decision.

Counsel for Plaintiffs
Glen P. Sugameli
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Defendant
Alfred T. Ghiorzi
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000