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United States v. Coalition for Buzzards Bay

ELR Citation: 41 ELR 20183
Nos. Nos. 10-1664, -1668, (1st Cir. , 05/17/2011)

The First Circuit held that the U.S. Coast Guard violated NEPA when it issued regulations that preempt state environmental law with respect to tank vessels in Buzzards Bay, Massachusetts. In promulgating the rule, the Coast Guard used a standard environmental checklist that included prompts corresponding to the extraordinary circumstances exceptions that might prevent the Coast Guard from relying on a categorical exemption. Based on that checklist, the Coast Guard concluded that the proposed action fell within a categorical exclusion that obviated the need for an EA or EIS. But the Coast Guard's bareboned negative response—a simple "no"—to the prompt asking whether the proposed action was likely to be highly controversial was arbitrary and capricious. During the time when rulemaking was underway, there was ferocious and widespread opposition to the Coast Guard's approach to the regulation of oil barges in Buzzards Bay. The Coast Guard knew of this opposition and also knew that much of it implicated the not implausible fear that environmental harm would ensue should the protections afforded by state law be eliminated and the proposed federal standards adopted. Given these realities, the Coast Guard's eschewal of any meaningful environmental inquiry was arbitrary and capricious. In addition, the administrative record, viewed as a whole, does not show that the Coast Guard ever analyzed, or even adequately studied, the environmental impact of its proposed action. Consequently, its failure to prepare either an EIS or an EA was not harmless.