18 ELR 10331 | Environmental Law Reporter | copyright © 1988 | All rights reserved

Judicial Review of an Agency's Decision Not to Prepare An Environmental Impact Statement

Editors' Summary: Although NEPA requires the preparation of an EIS for every major federal action significantly affecting the environment, federal agencies often decide in particular cases that compliance with NEPA is satisfied by preparation of EAs. The decision not to prepare an EIS is usually based on a finding of no significant impact. When an agency's threshold NEPA decision is challenged in court, what is the appropriate standard of review? The federal courts of appeals answer this question in at least two different ways: some circuits use the "arbitrary and capricious" standard, while others inquire into the "reasonableness" of the agency's decision. Several courts have expressed doubt that there is any genuine distinction between the rival standards,and the Supreme Court has so far declined to settle the issue. The author of this Article surveys the federal case law on this question, exploring the approach of each circuit and taking issue with those who maintain that the difference between the standards is illusory. The vital difference, the author argues, is that courts using the reasonableness standard are more likely to substitute their own judgment for that of the agency, while courts adopting the arbitrary and capricious standard tend not to second-guess an agency's decision. Because he sees an important difference between these two approaches, the author urges the Supreme Court to grant certiorari to resolve the circuit split.

Mr. Hoskins is Assistant to the General Counsel with the Office of the General Counsel, Department of the Army. This Article reflects the personal view of the author and does not necessarily reflect the official view of the Department of the Army.

[18 ELR 10331]

By denying the petition for a writ of certiorari in River Road Alliance, Inc. v. Corps of Engineers,¹ the United States Supreme Court left unresolved an important issue of administrative and environmental law: the standard of review that should be applied by courts reviewing an agency's decision not to prepare an environmental impact statement (EIS)² under the National Environmental Policy Act (NEPA).³ River Road Alliance involved a challenge, brought by the state of Illinois and a neighborhood group, to the issuance of a Department of the Army permit⁴ by the United States Army Corps of Engineers.⁵ This permit authorized the construction of a [18 ELR 10332] temporary barge fleeting facility on the Mississippi River.⁶ The decision to issue the permit was based on an environmental assessment (EA)⁷ prepared by the Corps after a public hearing on the environmental impacts of the project.⁸ The EA resulted in the issuance of a finding of no significant impact (FONSI),⁹ on the basis of which the Corps determined that an EIS need not be prepared.¹⁰

The state of Illinois and the neighborhood group challenged the Corps' decision not to prepare an EIS prior to issuing the permit.¹¹ The district court ruled that the Corps' action was arbitrary and capricious and granted the plaintiffs' summary judgment motion.¹² In reversing the lower court, the Seventh Circuit panel ruled that an agency's decision not to prepare an EIS may be set aside only when the agency's decision is an abuse of discretion.¹³ The Seventh Circuit panel recognized that other circuits of the courts of appeals have adopted "the higher standard of 'reasonableness'" as the standard of review,¹⁴ but questioned whether "any practical difference" existed between the abuse of discretion and reasonableness standards.¹⁵ After recognizing the conflict in standards being applied by different circuits, the Seventh Circuit applied the arbitrary and capricious standard and upheld the Corps' decision not to prepare an EIS.¹⁶

The Supreme Court, with Justice White dissenting, denied the petition for a writ of certiorari filed by Illinois. Justice White believed that review should have been granted to resolve the conflicting circuit opinions on the standard of review used to measure an agency's decision not to prepare an EIS.¹⁷ Justice White believed that the conflict was "not merely semantic or academic,"¹⁸ because courts that invoke the arbitrary and capricious standard "emphasize that the decision is committed to the agency's discretion," while courts invoking the reasonableness standard "stress the non-discretionary nature of NEPA's language."¹⁹

In an earlier case raising the same issue, Gee v. Boyd,²⁰ Justice White, joined by Justices Brennan and Marshall, dissented for similar reasons from the Court's denial of certiorari review in a case in which the Corps issued a permit, without first preparing an EIS, to the city of Norfolk, Virginia, authorizing the construction of a 298-slip marina.²¹ After discussing the various standards of review used by the different circuits of the courts of appeals, Justice White noted that the reasonableness standard of review represented a "more stringent rule" than the more deferential arbitrary and capricious standard.²² Justice White emphasized that circuits using the reasonableness standard "[rely] on the importance of 'the basic jurisdictional-type conclusion involved' or on the 'mandatory nature' of [NEPA's] language" as justification for their more penetrating standard of review.²³ In contrast, those circuits that apply the arbitrary and capricious standard of review emphasize that the decision not to prepare [18 ELR 10333] an EIS is one committed to the agency's discretion.²⁴ As in River Road Alliance, Justice White would have granted certiorari to end the confusion and "disarray" regarding the appropriate standard of judicial review of an agency's decision not to prepare an EIS.²⁵

This Article examines the apparent conflict among the circuits in an effort to determine whether the differences between the arbitrary and capricious and reasonableness standards of review are significant and warrant clarification by the Supreme Court and what the appropriate standard should be. By way of example, the first part of the Article discusses how NEPA is implemented in the Department of the Army's nationwide regulatory program. Next, the Article presents a survey of the standards of review used by the different circuits of the courts of appeals. The final part analyzes the reasoning underlying the different standards of review, concludes that the inconsistent standards represent a distinction with a difference, and recommends that the Supreme Court end the present confusion by ruling that the reasonableness standard represents the proper scope of judicial review of an agency's decision not to prepare an EIS.

An Example of NEPA in the Context of Agency Decisionmaking: The Army's Regulatory Program

Section 102 of NEPA requires federal agencies to prepare an EIS for every "major federal action significantly affecting the quality of the human environment."²⁶ Each year the Department of the Army, through its Corps of Engineers, receives approximately 10,000 applications for permits necessitated by the Army's regulatory program. Of this total, approximately 400 applications are denied and the remainder result in the issuance of permits either with or without special conditions. Under NEPA, the Corps must make a determination whether to prepare an EIS on each of these applications. As a general rule, very few EISs are prepared; rather, most permit decisions are based on EAs that conclude that the permitted activity will have no significant impact on the human environment.²⁷

The authority for the Army's regulatory program is found in various sections of the Rivers and Harbors Appropriation Act,²⁸ § 404 of the Federal Water Pollution Control Act (FWPCA, also known as the Clean Water Act),²⁹ and § 103 of the Marine Protection, Research, and Sanctuaries Act.³⁰ Section 10 of the Rivers and Harbors Appropriation Act³¹ prohibits construction activities in, or the excavating from or depositing into, the navigable waters of the United States³² without an Army permit authorizing such activity.³³ Section 404 of the FWPCA³⁴ authorizes the Department of the Army to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the "waters of the United States"³⁵ at specified disposal sites.³⁶ Section 103 of the Marine Protection, Research, and Sanctuaries Act³⁷ requires that a Department of the Army permit be issued for activities involving the transportation of dredged material for the purpose of disposal in the ocean.³⁸

[18 ELR 10334]

Pursuant to FWPCA § 404 and the Army's implementing regulations, a Department of the Army permit is required for any activity involving a discharge of dredged or fill material³⁹ into the waters of the United States.⁴⁰ The permit process begins with the submittal of a permit application that describes completely the proposed activity, along with the activity's location, purpose, and need.⁴¹ Using the information contained in the application, the district engineer issues a public notice within 15 days from receipt of the application.⁴² The public notice is distributed for posting in public places in the vicinity of the project site, and is sent to neighboring property owners and state and federal agencies.⁴³ The public is given a reasonable time to comment on the proposed project,⁴⁴ then the district engineer makes a final decision to issue or deny the permit.⁴⁵ The district engineer makes this determination using information gathered through the public notice and comment procedure and applying a "public interest review" decisionmaking process.⁴⁶ In the public interest review, the favorable impacts of a proposed activity are balanced against the activity's detrimental impacts.⁴⁷

Overshadowing the permit decisionmaking process is the requirement that NEPA be complied with before a permit may be issued. The Army recently revised its regulation establishing the NEPA procedure to be followed in carrying out its regulatory program.⁴⁸ This revision concluded an effort begun four years earlier to clarify and streamline the NEPA procedures applied to the Army's regulatory program.⁴⁹ These procedures were adopted to supplement the Council on Environmental Quality's (CEQ's) NEPA regulations.⁵⁰

Under these regulations, a permit application must be evaluated with either an EA or an EIS unless the proposed activity is covered by a "categorical exclusion."⁵¹ In the absence of a categorical exclusion, the Corps prepares an EA to assess the impacts of the applicant's proposed project.⁵² For permit applications, an EA is prepared as soon as practicable after the comment period for the public notice has expired.⁵³ Based on information gathered during the comment period and provided by other interested federal agencies, the district engineer either determines that an EIS should be prepared or prepares a statement of findings explaining the agency's FONSI.⁵⁴

[18 ELR 10335]

As alluded to earlier, the vast majority of permit applications result in findings that no significant impacts exist. There are three principal explanations for this large number of determinations that no EIS need be prepared. First, the Corps measures the potential impacts of an activity requiring a regulatory permit using a narrow scope of analysis.⁵⁵ When evaluating a permit application, the district or division engineer is directed to "establish the scope of the NEPA document (e.g., the EA or EIS) to address the impacts of the specific activity requiring a Department of the Army permit and those portions over which the district engineer has sufficient control and responsibility to warrant federal review."⁵⁶ Using this narrowed scope of review, the district engineer need not evaluate the significance of impacts on related activities that are not within the scope of analysis.⁵⁷

Another explanation for the large number of regulatory permit decisions made without the benefit of an EIS is that permit applicants often provide mitigation that reduces to insignificant levels any environmental impacts of the proposed activity. The CEQ and several courts support the use of mitigation measures to "buy down" what would otherwise be significant impacts.⁵⁸

Finally, many determinations not to prepare EISs occur because, based on the facts available, the decisionmaker concludes that the activity will not cause significant impacts to the human environment. In making such factual determinations the decisionmaker is guided by the CEQ's definition of the term "significantly," which requires that the context and the intensity of the proposed activity be considered before determining that no EIS is required.⁵⁹

The Standard of Review of an Agency's Decision Not to Prepare an EIS

At least two distinct standards of review are being employed by the circuits of the courts of appeals to assess an agency's decision not to prepare an EIS. The Second, Fourth, and Seventh Circuits apply the arbitrary and capricious standard. The First Circuit is not clear on the issue, but probably applies the arbitrary and capricious standard. The District of Columbia Circuit applies the arbitrary and capricious standard through a four-part test. The reasonableness standard of review is applied in the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits. In addition, the Third Circuit has "assume[d] without deciding" that an agency's determination not to prepare an EIS must be "reasonable under the circumstances." The Sixth Circuit has yet to clearly decide the issue.

The uncertainty arises from the Administrative Procedure Act's (APA's)⁶⁰ failure to specify what standards of review are applicable to what kinds of agency decisions.⁶¹ The Supreme Court in Citizens to Preserve Overton [18 ELR 10336] Park v. Volpe⁶² has indicated that the APA's arbitrary and capricious standard is applicable to an agency's findings of fact in the context of informal decisionmaking.⁶³ Overton Park does not provide a clear answer, however, as to the standard of judicial review applicable to review of an agency's decision not to prepare an EIS. First, although an agency's decision not to prepare an EIS is an example of informal decisionmaking, it does not involve a pure question of fact — rather, it is a mixed question of law and fact.⁶⁴ Courts sometimes tend to treat an agency's determinations of fact with greater deference than they treat an agency's interpretations of law.⁶⁵

Second, the ruling in Overton Park was a complicated one, including language that can be construed to support the application of either the arbitrary and capricious standard or the reasonableness standard to threshold NEPA questions. The Court held that under the APA, a reviewing court is first to determine whether the agency has acted within the scope of its authority.⁶⁶ In making this determination, the reviewing court must decide whether "on the facts, the [agency's] decision can reasonably be said" to be within the scope of the agency's "authority and discretion."⁶⁷ After this initial determination, the court must conclude "that the actual choice made [i.e., the agency's substantive decision] was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"⁶⁸ The Supreme Court also noted that while "the Secretary's decision is entitled to a presumption of regularity,"⁶⁹ that presumption will not "shield [the agency's] action from a thorough, probing, in-depth review."⁷⁰

Circuits Applying the Arbitrary and Capricious Standard of Review

Judicial review of an agency's decision not to prepare an EIS using the arbitrary and capricious standard of review dates back to the Second Circuit's decision in Hanley v. Kleindienst.⁷¹ Hanley involved a challenge by numerous neighborhood organizations to the General Services Administration's (GSA's) decision to construct a jail annex to the United States courthouse in lower Manhattan.⁷² In establishing the standard of judicial review applicable to its review of the GSA's decision not to prepare an EIS, the Hanley court noted that the challenge involved both a question of law and a question of fact.⁷³

The question of law, which the court reviewed de novo,⁷⁴ was the meaning of "significantly" as it appears in the NEPA requirement that an EIS be prepared for "major Federal actions significantly affecting the quality of the human environment."⁷⁵ With respect to the factual question of whether the jail annex would have a significant adverse environmental impact, the court limited its review to a determination of whether the GSA's "findings [were] 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or 'without observance of procedure required by law.'"⁷⁶ The court cited Overton Park in support of this approach.⁷⁷

The Second Circuit reinforced the Hanley decision in Town of Orangetown v. Gorsuch.⁷⁸ In affirming the district court's dismissal of the town's challenge, the Second Circuit held that an agency's decision whether to prepare an EIS is a "substantive issue … left to the informed discretion of the agency proposing the action or project."⁷⁹ The court went on to hold that the agency's [18 ELR 10337] decision not to prepare an EIS was "neither a rulemaking nor an adjudicatory function, but rather a factual finding made by an agency with particular expertise in environmental matters,"⁸⁰ and, under the APA, the action could be overruled by a reviewing court only if arbitrary or capricious.⁸¹

The court found support for the arbitrary and capricious standard in several of the Supreme Court's major NEPA decisions. For example, the Second Circuit cited Strycker's Bay Neighborhood Council, Inc. v. Karlen⁸² in support of the proposition that under NEPA "the judicially reviewable duties that are imposed on agencies are 'essentially procedural' and that 'once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences.'"⁸³ The court went on to explain that under the arbitrary and capricious standard "the appropriate role of the court is to ensure that [the agency] has taken a 'hard look' at the environmental consequences which are likely to result from the [proposed action]."⁸⁴

The Fourth Circuit adopted the arbitrary and capricious standard of review in Providence Road Community Association v. Environmental Protection Agency.⁸⁵ Providence Road involved an action by a group of property owners and their community association to enjoin the Environmental Protection Agency (EPA) from constructing a wastewater treatment facility on the grounds that the Agency had failed to prepare an EIS.⁸⁶ The property owners objected to the proposed "land treatment system" that would treat the wastewater by disinfecting it and then spraying it on vegetation that would act as a natural filter by removing any remaining impurities.⁸⁷

In reviewing EPA's decision not to prepare an EIS, the Fourth Circuit panel ruled that the decision whether to prepare an EIS is a decision left to the "informed discretion" of the agency.⁸⁸ Given this, the court ruled that an agency will be deemed to have properly exercised its "informed discretion" unless the agency's decision is shown to be arbitrary and capricious.⁸⁹

The Providence Road court found support for applying the arbitrary and capricious standard in the Supreme Court's decision in Kleppe v. Sierra Club.⁹⁰ At issue in Kleppe was whether the Department of the Interior (DOI) should be required to prepare an EIS to evaluate the effects of coal leasing in the Northern Great Plains region.⁹¹ The Department prepared a "Coal Programmatic EIS" to help evaluate a planning system that would guide a national leasing program.⁹² In addition to the programmatic EIS, DOI planned to require an individual EIS for each coal lease decision.⁹³

Numerous environmental organizations objected to this approach and argued that development of the coal reserves in the Northern Great Plains should be suspended until DOI prepared a comprehensive EIS discussing the environmental impacts the proposed leasing would have on the region.⁹⁴ Under these facts, the Supreme Court had before it the equivalent of a challenge of DOI's decision not to prepare an EIS covering all of the proposed leases within the Northern Great Plains region.⁹⁵ In reviewing the DOI's decision, the Court ruled that the proper standard of review was the arbitrary and capricious standard.⁹⁶

In River Road Alliance, Inc. v. Corps of Engineers,⁹⁷ the Seventh Circuit held that an agency's decision not to prepare an EIS was reviewable under the arbitrary and capricious standard.⁹⁸ Another Seventh Circuit court panel reached the same conclusion in Nucleus of Chicago Homeowners Association v. Lynn.⁹⁹ That case involved a challenge by an organization of middle-class neighborhoods to the Chicago Housing Authority's proposal to build low-income housing units with the assistance of the United States Department of Housing and Urban Development (HUD).¹⁰⁰ The organization was upset by the prospect that the low-income housing units would be located nearby and challenged the proposal on the grounds that HUD had failed to comply with NEPA by not filing an EIS assessing the impact of siting low-income public housing in middle-class neighborhoods.¹⁰¹ The Seventh Circuit ruled that an agency's decision not to prepare an EIS will be considered valid unless it is shown to be arbitrary and capricious.¹⁰²

The Seventh Circuit's rationale for applying the arbitrary and capricious standard was articulated in Van Abbema v. Fornell.¹⁰³ Van Abbema involved a challenge to the [18 ELR 10338] validity of a Department of the Army permit issued for a coal "transloading" facility on the Mississippi River¹⁰⁴ on the grounds that the Corps issued the permit without preparing an EIS.¹⁰⁵ The Van Abbema panel, consistent with the Seventh Circuit's decision in River Road Alliance and Nucleus of Chicago Homeowners Association, applied the arbitrary and capricious standard of review in order to "see to it that the agency took a 'hard look' at the environmental factors implicated and based its decision on a rational consideration of relevant factors."¹⁰⁶ Using this standard, the court noted that although it might have "pursued certain facts differently,"¹⁰⁷ the Corps' EA was not arbitrary and capricious because "the Corps considered the relevant factos and it made rational decisions about the likely impacts of the proposal."¹⁰⁸

The District of Columbia Circuit (D.C. Circuit) uses a four-step process in applying an arbitrary and capricious standard of review to an agency's decision not to prepare an EIS. In Sierra Club v. Peterson,¹⁰⁹ a three-judge panel, of which then-Circuit Judge Scalia was a member, held that the United States Forest Service's decision to issue oil and gas leases within two national forests violated NEPA because no EISs were prepared prior to issuing the leases.¹¹⁰

In its opinion, the Peterson court stated that it would overturn the Forest Service's decision not to prepare an EIS if the decision proved to be arbitrary and capricious.¹¹¹ The court stated that under this standard, "judicial review … is not … merely perfunctory as the court must insure that the agency took a 'hard look' at the environmental consequences of its decision."¹¹² Under this standard of review, the D.C. Circuit employed a four-part test to examine an agency's decision not to prepare an EIS. The four factors were (1) whether the agency took a "hard look" at the problem, (2) whether the agency identified the relevant areas of environmental concern, (3) whether the agency made a convincing case that the environmental impacts of the problems identified were insignificant, and (4) whether the agency established convincingly that any significant impacts were minimized.¹¹³

In Foundation on Economic Trends v. Weinberger,¹¹⁴ the District Court for the District of Columbia applied and elaborated on this four-factor test in its review of the Army's decision not to prepare an EIS before deciding to construct an Aerosol Test Facility at Dugway Proving Ground in Dugway, Utah.¹¹⁵ The district court explained that while the agency has the "initial and primary responsibility to ascertain whether an EIS is required,"¹¹⁶ the agency cannot satisfy this responsibility "by merely issuing a conclusory statement that the action does not significantly affect the environment."¹¹⁷ The court went on to state that the role of the reviewing court is "simply to ensure that the agency has adequately considered and disclosed the environmental impacts of its decision and that its decision is not arbitrary or capricious."¹¹⁸ The court also held that review of an agency decision not to prepare an EIS under the four-factor arbitrary and capricious test "must be undertaken with a view merely to determine if the agency has taken a 'hard look' at the environmental consequence of the action that NEPA requires."¹¹⁹

In the First Circuit, it is somewhat unclear what standard of review will apply to review of an agency decision not to prepare an EIS. In Gee v. Boyd,¹²⁰ Justice White identified Grazing Fields Farm v. Goldschmidt¹²¹ as establishing the arbitrary and capricious standard of review for First Circuit challenges of an agency's decision not to prepare an EIS.¹²² However, Grazing Fields involved judicial review of the adequacy of an EIS prepared by the Federal Highway Administration (FHWA) in connection with its plans to extend Massachusetts Route 25 in an effort to reduce traffic delays experienced by holiday motorists on their way to Cape Cod. The extension project was challenged by the family that owned the farm that would be bisected by the extension under the proposed alignment.¹²³

In Grazing Fields, the First Circuit established a two-step judicial review process to determine whether the FHWA decision to construct the highway along the proposed [18 ELR 10339] alignment was supported by an adequate EIS. The first step was to apply the arbitrary and capricious standard to the substantive aspects of the agency's action.¹²⁴ The second step was to assess de novo the agency's compliance with the procedural duties placed on the agency by NEPA.¹²⁵

The district court below had ruled in favor of the FHWA, having interpreted the Supreme Court's decision in Strycker's Bay Neighborhood Council, Inc. v. Karlen¹²⁶ as limiting judicial review of both procedural and substantive compliance with NEPA to the deferential arbitrary and capricious standard.¹²⁷ The Grazing Fields panel reversed and remanded to the district court for reconsideration under the new two-part standard.¹²⁸ On remand,¹²⁹ the district court concluded that the FHWA passed the first part of this two-step test, but not the second part, because the FHWA did not include a complete discussion of alternatives in the EIS.¹³⁰ Justice White's statement in Gee v. Boyd notwithstanding, the First Circuit has not made clear whether the two-step judicial review process established in Grazing Fields would apply in a fact situation where an agency's decision not to prepare an EIS is at issue.

In Quinones Lopez v. Coco Lagoon Development Corporation,¹³¹ the District Court for the District of Puerto Rico applied the arbitrary and capricious standard to review the Corps' decision not to prepare an EIS before issuing a Department of the Army permit.¹³² Drawing support from the Grazing Fields decision, the district court held that judicial review of an agency's decision not to prepare an EIS was limited to an inquiry "into whether the established procedure was followed and whether the agency's decision is arbitrary and capricious."¹³³ Under this standard, the court is to examine the administrative record to determine whether it "contains convincing evidence to sustain the agency's decision not to file an EIS,"¹³⁴ and must not "pass judgment on the balance struck by the agency among competing concerns."¹³⁵

Finally, the Sixth Circuit has not spoken clearly as to which standard of review should apply. In Boles v. Onton Dock, Inc.,¹³⁶ a Sixth Circuit panel reviewed the decision of the Corps of Engineers to grant Onton Dock a permit under § 10 of the Rivers and Harbors Appropriation Act,¹³⁷ and § 404 of the FWPCA,¹³⁸ for the construction of a coal loading facility on the bank of the Green River.¹³⁹ The permit was challenged by a group representing families from a nearby community on the grounds that the Corps had failed to prepare an EIS before making its decision to issue the permit.¹⁴⁰

On appeal to the Sixth Circuit, the Corps argued that the proper standard of review of its decision not to prepare an EIS was the arbitrary and capricious standard. The community group contended that the reasonableness standard was the appropriate standard of judicial review.¹⁴¹ The Sixth Circuit minimized the distinction between the standards noting that "[no] matter what standard courts have used, they have looked to see whether the [agency] made a reasoned determination."¹⁴² The court then concluded that the Corps' decision not to prepare an EIS was not arbitrary and capricious because "[t]he Corps made a well-reasoned determination which we believe was correct."¹⁴³ Thus, while the Sixth Circuit claims to apply the more deferential arbitrary and capricious standard, it also seems to delve into the reasoned nature or reasonableness of the decision.

Circuits Applying the Reasonableness Standard of Review

Perhaps somewhat ironically,¹⁴⁴ the reasonableness standard of review was first adopted by the Fifth Circuit in [18 ELR 10340] an action brought by a disenchanted group of 562 Corps of Engineers employees from Mobile, Alabama, known as Save Our Ten Acres (SOTA), to enjoin the construction of their new offices at an urban site in Mobile. In Save Our Ten Acres v. Kreger,¹⁴⁵ SOTA challenged the site selection process of the GSA on the grounds that the GSA had made the selection without preparing an EIS.¹⁴⁶ In reversing the district court's denial of relief, the Fifth Circuit ruled that "[t]o best effectuate [NEPA] the decision [not to prepare an EIS] should have been court-measured under a more relaxed rule of reasonableness, rather than by the narrower standard of arbitrariness or capriciousness."¹⁴⁷

GSA had argued for a deferential arbitrary and capricious standard of review, drawing support for its argument from "the well-settled proposition" that administrative findings of fact are conclusive if supported by substantial record evidence.¹⁴⁸ The Fifth Circuit rejected this argument, stating that the "usual fact determination rule ought not be applied to test the basic jurisdiction-type conclusion" involved in an agency's determination whether or not to prepare an EIS.¹⁴⁹ Rather, the court believed that a "more searching standard" needed to be applied or "[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review."¹⁵⁰ In effect, the court believed that the more deferential "arbitrary and capricious" standard of review would improperly minimize the agency's consideration of the goals and policies of NEPA.

The Fifth Circuit found support for the reasonableness standard in Overton Park,¹⁵¹ interpreting the Supreme Court's decision in that case as creating a bifurcated standard of review applicable to the NEPA decisionmaking process. Overton Park, as discussed previously,¹⁵² noted that under the APA the reviewing court must first decide whether the agency's decision can reasonably be said to be within the scope of the agency's authority; then, the reviewing court is to review the agency's substantive decision under the arbitrary and capricious standard.¹⁵³ Adopting this two-step process, the Save Our Ten Acres court concluded that the arbitrary and capricious standard was appropriate for review of "ultimate merit decision[s],"¹⁵⁴ in this case the decision of where to locate the office building. However, the court believed that Overton Park stood for the proposition that a "more penetrating inquiry is appropriate for court-testing … entry-way determination[s]," such as a decision whether to prepare an EIS.¹⁵⁵

Applying the reasonableness standard of review to the GSA's decision not to prepare an EIS, the Save Our Ten Acres court initially placed the burden of proof on the challenging party to make a showing that the agency's action would "materially degrade" some aspect of environmental quality.¹⁵⁶ Once this showing was made, the reviewing court weighed this evidence against the evidence presented by the agency to determine whether the agency's decision not to prepare an EIS was reasonable.¹⁵⁷ The court noted that under this standard, its inquiry is not limited to consideration of the administrative record, but may include other proof of environmental impact if the record is shown to be inadequate.¹⁵⁸ After considering the evidence presented by both sides, the reviewing court is to require the preparation of an EIS if it determines that the federal action may cause a significant degradation to the human environment.¹⁵⁹

Although the Save Our Ten Acres court articulated a standard mandating judicial substitution of judgment of an agency's decision whether to prepare an EIS, the court made it clear that judicial review of the ultimate agency decision made after preparation of an EIS would be much more deferential.¹⁶⁰ However, the court believed that in order to "insure that the mandate of [NEPA] has been carried out" the court must review the "entry-way" decision not to prepare an EIS to determine whether it was reasonable.¹⁶¹

The Fifth Circuit has developed further the reasonableness standard in several cases since its Save Our Ten Acres decision.¹⁶² In Fritiofson v. Alexander¹⁶³ the Fifth Circuit provided a good discussion of the less deferential nature of the reasonableness standard of review. Fritiofson involved a developer's proposal to construct a Venetian¹⁶⁴ housing development along the northern shore [18 ELR 10341] of West Galveston Island.¹⁶⁵ The property bordered a saltwater estuary of Galveston Bay and contained important saltwater and freshwater wetlands.¹⁶⁶ A Department of the Army permit was required because the proposed construction would require excavation from navigable waters and the discharge of dredged material into waters of the United States.¹⁶⁷ After the Corps issued the permit, neighboring landowners filed suit alleging that the Corps' failure to prepare an EIS before issuing the permit violated NEPA.¹⁶⁸

Applying the Fifth Circuit's precedent in Save Our Ten Acres, the district court ruled that the Corps' determination that no EIS was required was unreasonable.¹⁶⁹ On appeal the developer argued that the district court misapplied the reasonableness standard because "a district court applying the reasonableness test to a NEPA-threshold decision should simply satisfy itself that the agency has taken a 'hard look' at the proposed action."¹⁷⁰ The developer went on to argue that the Fifth Circuit should "abandon the reasonableness standard and apply the less rigorous arbitrary and capricious standard,"¹⁷¹ because of the Supreme Court's holdings in Strycker's Bay Neighborhood Council, Inc. v. Karlen¹⁷² and Kleppe v. Sierra Club.¹⁷³

The Fritiofson panel rejected these arguments and reinforced the Fifth Circuit's earlier decision in Save Our Ten Acres. Specifically, the court rejected the argument that Strycker's Bay and Kleppe required application of the arbitrary and capricious standard because "neither decision expressly reject[ed]" the applicability of the reasonableness standard to judicial review of any agency decision not to prepare an EIS.¹⁷⁴ The court went on to explain that under the reasonableness standard the reviewing court "does not have unbridled discretion to substitute its decision for that of the agency responsible for making the decision in the first instance."¹⁷⁵ However, a reviewing court may "receive and weigh evidence beyond that in the administrative record,"¹⁷⁶ and should "at least satisfy itself that the agency has taken a 'hard look' at the environmental concerns raised by the plaintiffs and the factors made relevant by the various regulations implementing NEPA."¹⁷⁷

Applying the reasonableness standard, the Fritiofson court ruled that an agency's decision not to prepare an EIS can be deemed unreasonable if the evidence before the reviewing court demonstrates either that the project may have a significant impact¹⁷⁸ or that "the agency's review was flawed in such a manner that it cannot yet be said whether the project may have a significant impact."¹⁷⁹

Another Fifth Circuit decision, Louisiana v. Lee,¹⁸⁰ provides some insight into the rationale supporting the Fifth Circuit's use of the reasonableness standard. In that case, a three-judge panel explained that the "7ore rigorous [reasonableness] standard" is applied "to facilitate NEPA's basic purpose … that the environmental effects of the proposal are considered 'to the fullest extent possible.'"¹⁸¹ The court went on to note that because "any decision based on an environmental assessment alone is necessarily more speculative than one made after the preparation and full consideration required by an [EIS]," the decision not to prepare an EIS and thus "place a given proposal beyond the purview of NEPA … must be inspected under the more searching" reasonableness standard.¹⁸²

The Tenth Circuit adopted the reasonableness standard in Wyoming Outdoor Coordinating Council v. Butz,¹⁸³ a case involving road building and logging operations arising out of Forest Service timber sale contracts. In reversing the district court decision that had applied the arbitrary and capricious standard,¹⁸⁴ the Wyoming Outdoor Coordinating Council court appeared to limit the use of that standard to determinations that are left to the agency's discretion.¹⁸⁵ The Tenth Circuit reasoned that the arbitrary and capricious standard was inappropriate for testing an agency's decision not to prepare an EIS because "NEPA's specific requirements in § 102 clearly speak in mandatory terms and do not leave the determination to administrative discretion."¹⁸⁶ Therefore, because NEPA's requirements [18 ELR 10342] concerning the preparation of an EIS are mandatory, the determination not to prepare an EIS must be measured using a reasonableness standard of review.¹⁸⁷ The court seemed to interpret Overton Park as establishing the arbitrary and capricious standard of review for cases in which the agency has more discretion than when it decides whether to prepare an EIS.¹⁸⁸

After articulating the reasonableness standard, the court proceeded with an in-depth review of the relevant findings of the Forest Service. After weighing the evidence before it, the court concluded that the proposed activity represented a major federal action significantly affecting the human environment and remanded the case with instructions that an order be entered requiring that an EIS be prepared.¹⁸⁹

In a recent decision the Tenth Circuit noted that, although NEPA places with the agency the initial responsibility of determining the need for an EIS, the role of the reviewing court "is to examine whether the agency's conclusion that its actions will have no significant environmental consequences was a reasonable one."¹⁹⁰ Having articulated this standard, the court went on to state that "we may not 'interject [ourselves] within the area of discretion of the execution as to the choice of the action to be taken.'"¹⁹¹ Noting that the plaintiffs failed to meet their burden of establishing that the agency's decision not to prepare an EIS was unreasonable, the court concluded that the agency "took the requisite 'hard look' at the environmental consequences of [the proposed action], and [therefore] the FONSI was 'within the bounds of reasoned decision-making.'"¹⁹²

The Eighth Circuit adopted the reasonableness standard in Winnebago Tribe of Nebraska v. Ray,¹⁹³ where it elaborated on the procedure established by the Fifth Circuit in Save Our Ten Acres. The case involved a proposal by the Nebraska Public Power District to construct a 67-mile transmission line through parts of Iowa and Nebraska. The "major Federal action" at issue was the requirement for a permit from the Army Corps of Engineers under § 10 of the Rivers and Harbors Appropriation Act¹⁹⁴ to authorize construction of the portion of the powerline crossing the Missouri River.¹⁹⁵ The court applied the "reasonableness" standard of review, using a shifting burden of proof.¹⁹⁶ Initially, the challenging party had the burden of raising a substantial environmental issue concerning the proposed project.¹⁹⁷ To meet its burden, the challenging party was required to identify facts omitted from consideration in the administrative record, that, if true, evidence a substantial impact on the environment.¹⁹⁸ Then the burden shifted to the agency to establish the "reasonableness of its negative determination."¹⁹⁹

In Winnebago Tribe the challenging party identified three deficiencies in the administrative record. First, the record did not discuss the environmental impacts of the 65 miles (out of a total 67 miles) of transmission line that did not require a federal permit because no river crossing was involved. Additionally, the administrative record did not consider alternatives to the project or the potential harm to bald eagles from the project.²⁰⁰ Applying the reasonableness standard, the Winnebago Tribe court concluded that the challenging party "failed to meet its burden of raising a substantial environmental issue omitted from consideration in the administrative record."²⁰¹ The court held that the portions of the powerline not requiring a $ 10 permit were outside the Corps' scope of analysis for NEPA purposes, and that the Corps' decision not to consider the environmental impacts posed by these portions of the powerline was reasonable.²⁰² The court also rejected the claim that the administrative record contained an inadequate discussion of alternatives.²⁰³ Additionally, the court concluded that the plaintiffs failed to present sufficient evidence establishing a detrimental impact on the area's bald eagles.²⁰⁴

The Ninth Circuit explained its choice of the reasonableness standard of review in Foundation for North American Wild Sheep v. United States Department of Agriculture.²⁰⁵ This case involved the decision of the Forest Service not [18 ELR 10343] to prepare an EIS prior to granting a special use permit allowing the reconstruction and use of a forest road that had been damaged by floods in 1969.²⁰⁶ The special use permit was requested by Curtis Tungsten, Inc., which intended to reconstruct the road to improve access to its tungsten mine located in the Angeles National Forest.²⁰⁷ Environmentalists opposed the reconstruction and reopening of the road because it passed through an area occupied by one of the few remaining herds of desert bighorn sheep, a species whose population has been decreasing due to its extreme sensitivity to environmental change.²⁰⁸

The Forest Service prepared an EA addressing four alternatives that would meet the transportation needs of the mine operator.²⁰⁹ Alternative B provided for reconstruction of the road but limited its use to nine months out of the year, closing the road during the three-month "lambing" period of the bighorn sheep.²¹⁰ The Forest Service selected this alternative and concluded no EIS was required because adequate protections were planned to mitigate any significant environmental impacts.²¹¹

The lawsuit sought to enjoin the reopening of the road. The district court refused to issue a preliminary injunction and granted the Forest Service's motion for summary judgment, holding that the agency "had reasonably concluded that no EIS was required."²¹² The Court of Appeals reversed, holding that the decision not to prepare an EIS was unreasonable because the Forest Service had failed to consider "numerous issues obviously relevant to a determination of the likely effect of reopening [the road] on the environment."²¹³

The Forest Service argued on appeal that the arbitrary and capricious standard should govern review of an agency's decision not to prepare an EIS.²¹⁴ The court rejected this argument because it felt that the arbitrary and capricious standard was "primarily applicable to reviewing an agency's discretionary decisions" and that the decision not to prepare an EIS was not a discretionary decision.²¹⁵ The court stated that the mandatory nature of NEPA's EIS directives made the reasonableness standard the more appropriate standard of review.

Under the Ninth Circuit's standard of review, the challenging party must allege "facts which, if true, show that the proposed project may significantly degrade some human environmental factor."²¹⁶ Applying this test, the court found the Forest Service EA lacking because it failed to estimate the amount of truck traffic that would occur on the reopened road.²¹⁷ The EA also failed to consider the effect of the road's reopening on a nearby "mineral lick" that is critical to maintaining the sheep herd.²¹⁸ Additionally, the EA did not address questions regarding stress-related diseases that might affect the sheep.²¹⁹

A subsequent decision in the Ninth Circuit has likened the reasonableness standard of review to an inquiry of whether the agency took a "hard look" at the environmental effects of the project. In Save the Yaak Committee v. Block²²⁰ the court considered a challenge brought to halt paving and reconstruction of a 17-mile portion of Yaak River Road on the grounds that no EIS accompanied the proposal to repair and pave the road.²²¹

The court stated:

If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable…. Additionally, an agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to "supply a convincing statement of reasons why potential effects are insignificant…." Indeed, "the statement of reasons is crucial" to determining whether the agency took a "hard look" at the potential environmental input of the project.²²²

In Bob Marshall Alliance v. Watt²²³ a district court in the Ninth Circuit also noted that NEPA mandated that federal agencies take a "hard look" at the environmental consequences of their decisions.²²⁴ The Montana district court stressed that the reasonableness standard of review required a more searching inquiry into agency decision-making than that required by the arbitrary and capricious standard. For example, the court cited Foundation for North American Wild Sheep²²⁵ for the proposition that [18 ELR 10344] "the decision to prepare an EIS is not a matter committed to the particular agency's discretion."²²⁶ The court concluded that because of the mandatory nature of NEPA's directive concerning when an EIS must be prepared, the arbitrary and capricious standard, which is "normally applicable to reviewing an agency's discretionary decisions," is inappropriate for reviewing an agency's decision to prepare an EIS.²²⁷

In Manasota-88, Inc. v. Thomas²²⁸ the Eleventh Circuit presented its views on the reasonableness standard of review.²²⁹ This case involved the determination by EPA that an EIS was not necessary for a modification to a national pollutant discharge elimination system (NPDES) permit regulating discharges from a phosphate ore processing plant.²³⁰

In reviewing EPA's decision not to issue an EIS, the Manasota-88 court accepted the contention of the parties challenging the decision that judicial review must be based on the reasonableness standard.²³¹ Nonetheless, having articulated this standard, the court went on to uphold the EPA decision after concluding that it was not arbitrary and capricious.²³² This anomaly may be explained by the fact that EPA's decision not to prepare an EIS was not based on a FONSI in the normal sense. Rather, at issue in Manasota-88 was whether the proposed activity was exempt from NEPA under the FWPCA on the grounds that it was not a "new source."²³³ The court applied the arbitrary and capricious standard and deferred to EPA's interpretation that no EIS was required under its NEPA regulation.²³⁴ The Eleventh Circuit decision is also interesting because it concluded that there was little, if any, difference between the reasonableness and arbitrary and capricious standards.²³⁵ This also helps to explain why the court paid lip-service to the reasonableness standard, but showed great deference to the decision of EPA.²³⁶

As for the Third Circuit, in Township of Lower Alloways Creek v. Public Service Electric and Gas Co.,²³⁷ the court "assume[d] without deciding" that an agency's decision not to prepare an EIS should be reviewed using the reasonableness standard.²³⁸ The Township of Lower Alloways Creek panel adopted the rationale of the earlier Third Circuit ruling in Concord Township v. United States,²³⁹ where the Third Circuit found it unnecessary to choose between the arbitrary and capricious and reasonableness standards of review.²⁴⁰ This was because the district courts within the Third Circuit appeared to prefer the reasonableness standard, a higher level of scrutiny may be more appropriate for threshold determinations such as the decision whether to prepare an EIS, and the particular agency decision at issue in that case could be upheld even under the stricter reasonableness standard.²⁴¹

The Township of Lower Alloways Creek court reviewed the Nuclear Regulatory Commission's (NRC's) decision not to prepare an EIS before amending a New Jersey nuclear plant's license. The court sought to determine whether the decision was "reasonable under the circumstances"²⁴² "when viewed in the light of the mandatory requirements and high standards set by NEPA."²⁴³ Under its standard of review, the Third Circuit required that challenging parties demonstrate the existence of a substantial environmental issue²⁴⁴ by identifying a deficiency in the administrative record.²⁴⁵ Applying this standard, the court ruled in favor of the NRC because the challenging party failed to identify any evidence that demonstrated a significant environmental effect.²⁴⁶ The court rejected the petitioner's "common-sense" argument that quadrupling the spent fuel stored at the reactor site would result in a significant environmental impact.²⁴⁷ Rather, the court stated that an agency's decision not to prepare an EIS will be considered reasonable unless the challenging party "advance[s] [18 ELR 10345] specific allegations tending to indicate that the agency somehow misapplied the law, misinterpreted the evidence, overlooked certain testimony, or unreasonably reached its 'no significant impact' determination."²⁴⁸

Arbitrary and Capricious versus Reasonableness: A Distinction with a Difference

The issue remains whether the differing standards used by the various circuits of the courts of appeals represent a true conflict — in other words, whether they represent "a distinction without a difference." It is clear that Justice White believes that there is a serious conflict between the two standards of judicial review.²⁴⁹ In his judgment, courts that apply the reasonableness standard justify the application of this "more searching standard" on the grounds that the arbitrary and capricious standard normally applied to review of an agency's substantive decisions is inappropriate when "applied to test the basic jurisdictional-type conclusion" involved in an agency's decision not to prepare an EIS.²⁵⁰ On the other hand, according to Justice White, courts that apply the arbitrary and capricious standard do not recognize the subtle distinction between normal substantive decisions and jurisdictional-type decisions, but rather apply the same, "more deferential" arbitrary and capricious standard to both.²⁵¹

At the outset, it is important to realize that circuits applying the different standards of review often derive support from the same Supreme Court decisions. For example, the Fifth Circuit's opinion in Save Our Ten Acres²⁵² pointed to Overton Park²⁵³ as support for the "more searching" reasonableness standard.²⁵⁴ The Court in Overton Park established a two-step review process under the APA whereby the reviewing court would first determine whether the agency's action could reasonably be said to have been within the agency's authority, and then whether the agency's actual choice was arbitrary and capricious.²⁵⁵

In Save Our Ten Acres the Fifth Circuit construed this two-step process as creating a bifurcated standard of review applicable to the NEPA decisionmaking process.²⁵⁶ Under this approach, "ultimate merit decision[s]," such as which alternative should be selected after the agency has benefited from the EIS process, are reviewable only under the arbitrary and capricious standard.²⁵⁷ However, "a more penetrating inquiry is appropriate for court-testing the entry-way determination" of whether to prepare an EIS.²⁵⁸

On the other hand, circuits that apply the arbitrary and capricious standard also point to Overton Park as support for their more deferential standard for reviewing an agency's decision not to prepare an EIS. The Second Circuit's opinion in Hanley v. Kleindienst²⁵⁹ provides a good example. In that case, the court interpreted Overton Park as limiting judicial review of agency substantive decisions to an examination of whether the agency's decision was arbitrary and capricious.²⁶⁰ The Hanley court did not interpret Overton Park as establishing a more stringent standard of review for entryway decisions such as whether an EIS should be prepared. Rather, the court appears to have seen Overton Park as establishing only one standard of review applicable to the review of any substantive decision of an agency.²⁶¹

In recent decisions, the circuit courts have drawn support for their respective standards of review from the Supreme Court's "hard look" line of NEPA decisions. Ironically, the circuits find support for both the reasonableness and arbitrary and capricious standards from these decisions. For example, the Second Circuit in Town of Orangetown concluded that under the Supreme Court's ruling in Strycker's Bay,²⁶² judicial review of all types of NEPA decisionmaking is limited to a deferential inquiry into whether the agency took a "hard look" at the environmental consequences of the proposed activity.²⁶³ The Second Circuit in Strycker's Bay had ruled that under the alternatives analysis required by § 102(2)(E)²⁶⁴ of NEPA, "environmental factors, such as crowding low income housing into a concentrated area, should be given a determinative weight" when balanced against the "unacceptable delay" that would result from finding an alternative location for the housing development.²⁶⁵ The Supreme Court, drawing support from its earlier decision in Kleppe, ruled that a reviewing court may not require that an agency [18 ELR 10346] "elevate environmental concerns over other appropriate considerations," but rather should limit its role to that of "insur[ing] that the agency has considered the environmental consequences."²⁶⁶

The Orangetown court reads the Supreme Court's rulings in Strycker's Bay and Kleppe as requiring deferential review for all NEPA decisions, including the "entryway" decision of whether to prepare an EIS. In contrast, courts applying the reasonableness standard interpret the same Supreme Court rulings much more narrowly. For example, in Louisiana v. Lee, the Fifth Circuit expressly rejected the argument that the Supreme Court's decision in Strycker's Bay and Kleppe mandate the use of the arbitrary and capricious standard.²⁶⁷ Additionally, in those circumstances when the Fifth Circuit has made reference to the "hard look" line of cases, the court has applied them with a novel twist. In Fritiofson, for example, the Fifth Circuit ruled that while an agency is required only to take a "hard look" at environmental concerns involved in a proposed project, the reviewing court may legitimately look beyond the record at evidence presented by plaintiffs that environmental concerns have been overlooked, ignored, or minimized by the agency.²⁶⁸

Perhaps as a result of confusion over how to interpret Overton Park and the "hard look" cases, some circuits have either not clearly articulated their standard of review,²⁶⁹ or have trivialized the issue by arguing that no real difference exists between the standards.²⁷⁰ Since both standards seem to be based on the same Supreme Court rulings, the conclusion of these latter circuits may be appealing. However, a view that no real difference exists between the standards overlooks the important fact that courts applying the reasonableness standard tend to substitute their judgment for that of the agency, while courts applying the arbitrary and capricious standard generally do not.

For example, under the reasonableness standard originally developed in Save Our Ten Acres, the Fifth Circuit places a burden on the challenging party to allege facts that, if true, show that the agency activity may "materially degrade … the environmental quality."²⁷¹ If such allegations are made, the burden of proof shifts to the agency to establish that it "reasonably concluded that the particular project would have no effects which would significantly degrade" the quality of the human environment.²⁷² By placing the burden of proving reasonableness on the agency, the court evidences a willingness to second-guess the agency's decision. In addition, the court in Fritiofson made clear that, notwithstanding principles of judicial review of agency action, it is appropriate for a reviewing court to go outside the administrative record and to weigh evidence presented by a party challenging an agency's decision not to prepare an EIS.²⁷³

Other courts applying the reasonableness standard have adopted the shifting burden of proof analysis established in Save Our Ten Acres. For example, the Eighth Circuit in Winnebago Tribe of Nebraska required the challenging party to "raise a substantial environmental issue concerning the proposed project," before "the burden shifts to the [agency] to support the reasonableness of its negative determination."²⁷⁴ The Ninth Circuit has applied the reasonableness standard to require the preparation of an EIS if the challenging party raises substantial questions about "whether a project may have a significant effect upon the human environment."²⁷⁵ Again, as in Save Our Ten Acres, the reasonableness standard seems to require the court ultimately to weigh the evidence and make a substantive decision.

What is clear in all these cases is that the reviewing courts perceive their role as one requiring active involvement in the ultimate decision of whether to prepare an EIS. Thus, it appears that courts applying the reasonableness standard believe they have more latitude to substitute their judgment for that of the agency. These courts justify the use of the reasonableness standard by recognizing that, while NEPA may be "basically a procedural" statute,²⁷⁶ the substantive goals of NEPA would be jeopardized if an agency's decision to forego preparation of an EIS were not subjected to a higher standard of review. Thus, these circuits apply the more deferential arbitrary and capricious standard when reviewing ultimate agency decisions reached after preparation of an EIS, but review more strenuously decisions that would forestall the EIS process.²⁷⁷

On the other hand, the circuit courts that apply the arbitrary and capricious test appear to apply a very deferential review that tends not to second-guess or reexamine the decision of the agency. For example, the First Circuit believes that review under the arbitrary and capricious standard is quite narrow in scope.²⁷⁸ Under its interpretation of the standard, "[t]he court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns."²⁷⁹ The Seventh Circuit, while minimizing the difference between the standards, clearly believes that judicial review of an agency's decision not to prepare an EIS is limited and deferential.²⁸⁰

[18 ELR 10347]

Circuits applying the arbitrary and capricious test do not make any distinction between cases where the agency's decision is based on an EA and cases where the decision is based on an EIS. Rather, judicial review in either context is limited by the precept that factual determinations, whether made in an EA or EIS, are "left to the informed discretion of the agency proposing the actions or the project."²⁸¹ These courts tend to rely on the language of the APA as settling the issue of what is the appropriate standard of review to apply to an agency's decision not to prepare an EIS.²⁸²

Additionally, these courts feel constrained to limit their review to information contained in the administrative record and an examinationof whether the ultimate decision made is rationally related to the facts contained in the administrative record.²⁸³ This is in complete contrast to courts like the Fifth Circuit that not only receive evidence outside of that contained in the agency's administrative record, but also perform an independent analysis of it.²⁸⁴

Thus, Justice White is correct when he notes that the difference between the standards "is not merely semantic or academic."²⁸⁵ Judicial review under the arbitrary and capricious standard is generally deferential and focuses on the question of whether the agency has exceeded its authority in reaching its decision not to prepare an EIS. On the other hand, courts applying the reasonableness standard more often substitute their judgment for that of the agency and make their own determination of whether the facts warrant the preparation of an EIS.

If the Supreme Court decides to address the issue, it should consider strongly the appropriateness of a more searching standard for judicial review of an agency's decision not to prepare an EIS. Such a standard would be consistent with the legislative intent of NEPA. Through NEPA, Congress chose to rely on a procedural mechanism, the EIS, to meet the statute's substantive environmental goals. While judicial deference, as embodied in the arbitrary and capricious standard, is appropriate when reviewing an agency's ultimate decision made with the benefit of an EIS, applying the same standard of review to an agency's decision to forego the EIS undercuts and weakens the framework adopted by Congress to solve the nation's environmental problems. The circuits applying the reasonableness standard appear to have recognized this, and have modified their standard of review accordingly. The review by these courts is not de novo from the outset; rather, reasonableness review provides that a court will overturn an agency decision only after a showing that the agency has overlooked a significant environmental impact. This departure from traditional notions of deferential judicial review seems appropriate given the critical role that the determination of whether to prepare an EIS plays in the NEPA process.

Conclusion

Different circuits of the courts of appeals apply conflicting standards of review when reviewing an agency's decision not to prepare an EIS. The conflict between the standards is significant and of concern to federal agencies such as the Department of the Army, which considers approximately 10,000 applications for regulatory permits each year. The conflicting standards of judicial review applied by the circuits lead to confusion within the permit decision-making process, because an integral part of that process is a determination of whether to prepare an EIS. The Supreme Court should end the confusion and grant review to resolve the issue of what standard of judicial review should be applied to assess an agency's decision not to prepare an EIS.

1. 475 U.S. 1055 (1986).

2. An environmental impact statement is the "detailed written statement … required by Section 102(2)(C) of NEPA." Council on Environmental Quality (CEQ) Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA), 40 C.F.R. § 1508.11 (1987) [hereinafter CEQ NEPA Regulation]. Section 102(2)(C) of NEPA requires federal agencies to

include in every … major Federal action[] significantly affecting the quality of the human environment, a detailed statement … on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C), ELR STAT. NEPA 003-004.

3. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA 001-006.

4. The Department of the Army has responsibility under several provisions of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act (FWPCA, also known as the Clean Water Act), 33 U.S.C. § 1344, ELR STAT. FWPCA 054, to regulate certain activities in the nation's waters. The Army discharges these responsibilities through a regulatory permit program. See 33 C.F.R. §§ 320-330 (1987). See infra notes 28-38 and accompanying text.

5. River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d 445, 447, 15 ELR 20518, 20519 (7th Cir. 1985), cert. denied, 475 U.S. 1055 (1986).

6. Id.

7. An environmental assessment is:

A concise public document for which a Federal agency is responsible that serves to:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact; [and]

(2) Aid an agency's compliance with [NEPA] when no environmental impact statement is necessary … [and must] include brief discussions of the need for the proposal, of alternatives as required by Section 102(2)(E), of the environmental impacts of the proposed action and alternatives and a listing of agencies and persons consulted.

CEQ NEPA Regulation, supra note 2, 40 C.F.R. § 1508.09 (1987).

8. 475 U.S. at 1055.

9. A FONSI is:

A document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded, will not have significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it. If the assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by reference.

CEQ NEPA Regulation, supra note 2, 40 C.F.R. § 1508.13 (1987).

10. 475 U.S. at 1055.

11. Id.

12. Id.

13. River Road Alliance, 764 F.2d at 449, 15 ELR at 20519 (citing Wisconsin v. Weinberger, 745 F.2d 412, 417, 14 ELR 20744, 20746 (7th Cir. 1984) (in the Seventh Circuit the standard of review is taken from the Administrative Procedure Act (APA); court will set aside an agency decision if found to be arbitrary and capricious)). Although the standard of review adopted by the Seventh Circuit — abuse of discretion — is generally considered to be the same as the arbitrary and capricious standard used by the district court (see 5 U.S.C. § 706(2)(A), ELR STAT. ADMIN. PROC. 007) the two courts arrived at different conclusions as to whether the Corps' action was permissible under the standard.

14. 764 F.2d at 449, 15 ELR at 20519 (citing Wisconsin v. Weinberger, 745 F.2d at 417 n.5, 14 ELR at 20746 n.5; Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F.2d 732, 742, 12 ELR 21029, 21033 (3d Cir. 1982)).

15. 764 F.2d at 449, 15 ELR at 20519.

16. The panel concluded that there may be little difference between the two standards of review because

[c]ourts dissatisfied with the "abuse of discretion" formulation are concerned that an agency whose primary mission is not the protection of the environment — an agency such as the Corps of Engineers — may tend to slight environmental concerns in deciding whether to encumber its decision-making process with an environmental impact statement…. Such a tendency is bound to make courts more alert for abuses of discretion than they might otherwise be. But realism about the danger of abuse does not require a change in the standard of judicial review. There is plenary review and there is deferential review and whether it is fruitful to attempt fine graduations within the second category may be doubted, but there is no need to resolve our doubt here.

Id.

17. 475 U.S. at 1056 (White, J., dissenting).

18. Id. (quoting Gee v. Boyd, 471 U.S. 1058 (1985)).

19. 475 U.S. at 1056 (White, J., dissenting).

20. 471 U.S. 1058 (1985).

21. Id. at 1058 (White, J., joined by Brennan, J., and Marshall, J., dissenting).

22. Id. at 1059 (citing Foundation of North American Wild Sheep v. United States Dep't of Agriculture, 681 F.2d 1172, 1177 n.24, 12 ELR 20968, 20969 n.24 (9th Cir. 1984)).

23. Id. at 1059 (citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466, 3 ELR 20041, 20042 (5th Cir. 1973)). Justice White provided an example:

In settling on this more stringent rule, the Court of Appeals for the Fifth Circuit expressed the concern that "[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review."

Id.

24. 471 U.S. at 1059 (White, J., dissenting) (citing Providence Road Community Association v. Environmental Protection Agency, 683 F.2d 80, 82, 12 ELR 21044, 21045 (4th Cir. 1982)).

25. 471 U.S. at 1060 (White, J., dissenting). The Supreme Court had, on one previous occasion, declined to review a case presenting the same issue. In Morningside Renewal Council, Inc. v. United States Atomic Energy Commission, 417 U.S. 951 (1974), Justice Douglas dissented from the Court's denial of certiorari on a petition to review the Atomic Energy Commission's determination that no EIS was required prior to authorizing the operation of a Triga Mark II nuclear reactor on the Manhattan campus of Columbia University. In his dissenting opinion, Justice Douglas noted the apparent conflict between the circuits, and stated that he would grant the petition for certiorari to resolve the conflict.

26. 42 U.S.C. § 4332, ELR STAT. NEPA 003-004. See supra note 2.

27. Under the CEQ NEPA Regulation, supra note 2, the decision to grant a permit is considered a "major federal action." See 40 C.F.R. § 1508.18 (1987). The regulation defines "major federal action" to include approval of specific projects, including federal and federally assisted projects as well as nonfederal projects that require approval "by permit or other regulatory decision." See id. § 1508.18(b)(4) (1987). Regulations implementing the Army's regulatory program are consistent with this definition of "major federal action" and state that a "decision on a permit application will require either an environmental assessment or an environmental impact statement unless it is included within a categorical exclusion." 33 C.F.R. § 325.2(a)(4) (1987). As a general rule, EAs performed for a given permit application usually conclude that the proposed activity will have no significant impact on the environment. When such a conclusion is reached, a FONSI is prepared and made available for public comment. 40 C.F.R. § 1501.4(e) (1987). See supra note 9. The Army's permit regulations refer to the FONSI as a statement of findings. 33 C.F.R. § 325.2(a)(6) (1987).

28. 33 U.S.C. §§ 401, 403, 404, 406, 407.

29. 33 U.S.C. § 1344, ELR STAT. FWPCA 054.

30. 33 U.S.C. § 1413. See generally Regulatory Program of the Corps of Engineers, Final Rule, 42 Fed. Reg. 37122 (1977) (preamble).

31. 33 U.S.C. § 403. Section 10 provides that:

[I]t shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

Id.

32. The geographic jurisdiction under § 10 is limited to the "navigable waters of the United States," generally defined as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." 33 C.F.R. § 329.4 (1987).

33. 33 U.S.C. § 403. See also 33 C.F.R. § 320.2 (1987).

34. Section 404 provides that "the Secretary [of the Army] may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a), ELR STAT. FWPCA 054.

35. The "waters of the United States" are defined as:

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters, including interstate wetlands,

(3) All other waters such as … wetlands …, the use, degradation, or destruction of which could affect interstate or foreign commerce …;

(4) All impoundments of waters otherwise defined as waters of the United States under the definition;

(5) Tributaries of waters identified … above;

(6) The territorial seas;

(7) Wetlands adjacent to waters….

33 C.F.R. § 328.3 (1987).

36. 33 U.S.C. § 1344(a) (1986). See also 33 C.F.R. § 320.2 (1987).

37. 33 U.S.C. § 1413.

38. Id. See also 33 C.F.R. § 320.2 (1987). In addition to these authorities, there are several related laws that affect the Army's regulatory program. Most significant is FWPCA § 401, 33 U.S.C. § 1341, ELR STAT. FWPCA 051, which requires permit applicants to obtain a state water quality certification if the permitted activity "may result in a discharge of a pollutant into waters of the United States." Id. See also 33 C.F.R. § 320.3 (1987).

39. "Dredged material" is defined as "material that is dredged or excavated from waters of the United States." 33 C.F.R. § 323.2(c) (1987). "Discharge of dredged material" means the "addition of dredged material into the waters of the United States," but does not include "de minimis incidental soil movement during normal dredging operations." 33 C.F.R. § 323.2(d) (1987). "Fill material" is "material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody." 33 C.F.R. § 323.2(e) (1987). The term "discharge of fill material" means "the addition of fill material into the waters of the United States," but does not include "plowing, cultivating, seeding, and harvesting for the production of food, fiber, and forest products." 33 C.F.R. § 323.2(f) (1987).

40. 33 C.F.R. § 323.1 (1987).

41. Id. § 325.1(d).

42. Id. § 325.2(a)(2). The information required to be listed in the public notice is detailed at 33 C.F.R. § 325.3 (1987).

43. Id. § 325.3(d)(1).

44. Id. § 325.3(d)(2).

45. Id. § 325.3(d)(3). The regulations require that the district engineer reach a decision no later than 60 days after receipt of the permit application. Id. In practice, this time schedule is rarely met.

In addition to providing notice and considering public comment, the district engineer is required to review permit applications using the FWPCA § 404(b)(1) guidelines promulgated by the Environmental Protection Agency (EPA). See 40 C.F.R. pt. 230 (1987). As a general rule, no permit can be issued unless it complies with these guidelines. 33 C.F.R. § 323.6(a) (1987). If the district engineer determines that a water quality certification is needed under FWPCA § 401, id. § 325.2(b)(1), no Department of the Army permit can be issued until the certification has been obtained or waived. Id. § 325.2(b)(1)(ii). The district engineer must also comply with additional procedures dealing with historic properties, endangered species, and activities affecting the coastal zone. See id. § 325.2(b)(2), (3), (5).

46. Id. Under the public interest review, "[t]he decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest." 33 C.F.R. § 320.4(a) (1987).

47. Id. Factors taken into consideration include the public and private need for the proposed work, the practicability of using reasonable alternative locations and the extent and permanence of the detrimental effects of the project. Id.

This procedure was originally developed to evaluate applications for permits required by the Rivers and Harbors Appropriation Act. Id. See Ablard & O'Neill, Wetland Protection and Section 404 of the Federal Water Pollution Control Act Amendments of 1972: A Corps of Engineers Renaissance, 1 VT. L. REV. 51, 57 (1976); Wood & Hill, Wetlands Protection: The Regulatory Role of the U.S. Army Corps of Engineers, 4 COASTAL ZONE MGMT. J. 371, 377-83 (1978). When the FWPCA and the Marine Protection, Research, and Sanctuaries Act were enacted, the Corps adopted the public interest review process as the basis for its regulations implementing the statutes' regulatory requirements. 33 C.F.R. § 320.4(a) (1987).

48. Corps of Engineers, Department of the Army, Environmental Quality, Procedures for Implementing the National Environmental Policy Act Final Rule, 53 Fed. Reg. 3120 (1988) (to be codified at 33 C.F.R. §§ 230, 325) [hereinafter Corps NEPA Regulation].

49. See Corps NEPA Regulation, supra note 48, 53 Fed. Reg at 3120. Many commenters to the Army's proposed NEPA rule, including EPA, found the proposed revisions objectionable. After several months of discussions between the Army and EPA failed to resolve EPA's concerns, EPA referred the regulation to the CEQ pursuant to § 309 of the Clean Air Act, 42 U.S.C. § 7609, ELR STAT. CAA 046. The referral focused on four areas in dispute: the scope of analysis of the NEPA review, the appropriate "purpose and need" against which to measure alternatives, the level of alternatives analysis required in an EA, and the appropriateness of placing page limits on an EIS. See CEQ, Findings and Recommendations on Referral from U.S. Environmental Protection Agency Concerning Proposed Amendments to U.S. Army Corps of Engineers Procedures for Implementing the National Environmental Policy Act, 52 Fed. Reg. 22517 (1986). The CEQ approved the Army's positions on these issues but offered recommendations and suggestions for modified language. The Army's final regulation incorporates the recommendations and suggested language prepared by the CEQ. See Corps NEPA Regulation, supra, 53 Fed. Reg. at 3120.

50. Promulgation of counterpart NEPA regulations is authorized by 40 C.F.R. § 1507.3, which provides that "such procedures shall not paraphrase [the CEQ's] regulations … [and] shall confine themselves to implementing procedures." Thus, Appendix B to 33 C.F.R. § 325 contains only procedural guidance, and makes reference to the appropriate provision of the CEQ regulation for substantive requirements.

51. Corps NEPA Regulation, supra note 48, 53 Fed. Reg. at 3134. Under the regulation, the following activities are considered categorical exclusions:

(1) Fixed or floating small private piers, small docks, boat hoists and boathouses;

(2) Minor utility distribution and collection lines including irrigation;

(3) Minor maintenance dredging using existing disposal sites;

(4) Boat launching ramps; and

(5) All applications which qualify as letters of permission (as described at 33 C.F.R. § 325.5(b)(2)).

Id.

52. Id. However, the agency need not prepare an EA if the agency has already decided to prepare an EIS. 40 C.F.R. § 1501.3(a) (1987).

53. Corps NEPA Regulation, supra note 48, 53 Fed. Reg. at 3135.

54. Id.

55. Corps NEPA Regulation, supra note 48, 53 Fed. Reg. at 3135. The scope of analysis issue arises in situations where a permit applicant proposes to "conduct a specific activity requiring a Department of the Army permit (e.g., construction of a pier in a navigable water of the United States) which is merely one component of a larger project (e.g., construction of an oil refinery on an upland area)." Id. at paragraph 8.b.

56. Id. Therefore, in the example in note 55, supra, the EIS would not have to consider the environmental effects of the oil refinery as a whole if the district engineer had little or no control over or responsibility for the refinery.

57. Id. However, "[w]hatever portion of the project [is deemed to be covered] in the scope of analysis, that analysis will include all direct, indirect, and cumulative impacts." 53 Fed. Reg. at 3122.

58. See Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18038 (1981). "Mitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal." Id. See also, e.g., Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860, 12 ELR 20410, 20414 (9th Cir. 1982).

59. The regulation states:

"Significantly" as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short-and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

40 C.F.R. § 1508.27 (1987).

60. See 5 U.S.C. §§ 701-706, ELR STAT. ADMIN. PROC. 007.

61. See D. MANDELKER, NEPA LAW AND LITIGATION § 3:04 at 8 (1984).

The APA simply states that a reviewing court shall set aside agency actions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. § 706(2), ELR STAT. ADMIN. PROC. 007.

62. 401 U.S. 402, 1 ELR 20110 (1971).

63. 401 U.S. at 413-14, 1 ELR at 20113. Overton Park involved a challenge by citizens and local and national conservation organizations of a decision by the Secretary of Transportation to build a six-lane interstate highway through a public park in Memphis, Tennessee. The Secretary's decision was challenged under two provisions of federal law that prohibited the use of federal funds to finance the construction of highways through public parks if an alternative route exists, or (where there is no alternative) if the potential harm to the park has been minimized in the planning process. See § 4(f) of the Department of Transportation Act of 1966, Pub. L. No. 89-670, 80 Stat. 933, codified at 49 U.S.C. § 1653(f), repealed, § 7(b), Pub. L. No. 97-449, 96 Stat. 2444; § 18(a) of the Federal-Aid Highway Act of 1968, Pub. L. No. 90-495, 82 Stat. 823, codified at 23 U.S.C. § 138.

64. The question of law will generally involve the issue of what constitutes a "major Federal action significantly affecting the quality of the human environment," while the question of fact will center on whether the particular proposal at issue is such an action. See D. MANDELKER, NEPA LAW AND LITIGATION § 3:05 at 11 (1984).

65. See id. at 9. However, courts at times choose to defer to an agency's interpetations of its authorizing statute. See id.

66. 401 U.S. at 415-16, 1 ELR at 20113. The Court held that:

This determination naturally begins with a delineation of the scope of the Secretary's authority and discretion…. As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether on the facts the Secretary's decision can reasonably be said to be within that range.

Id. (emphasis added).

67. Id. In the factual and legal context of the Overton Park case, see supra note 63, the reviewing court "must consider whether the Secretary properly construed his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems." 401 U.S. at 416, 1 ELR at 20113. In addition, "the reviewing court must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems." Id.

68. Id. The Court noted that a third step is an inquiry into whether the agency followed the necessary procedural requirements. 401 U.S. at 417, 1 ELR at 20114.

69. 401 U.S. at 415, 1 ELR at 20113.

70. Id. The Court stated that "to make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." 401 U.S. at 416, 1 ELR at 20113.

71. 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

72. 471 F.2d at 826, 2 ELR at 20718.

73. 471 F.2d at 828, 2 ELR at 20719.

74. Id. (citing the APA, 5 U.S.C. § 706, ELR STAT. ADMIN. PROC. 007 ("to the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law")).

75. 42 U.S.C. § 4332(2)(c), ELR STAT. NEPA 003-004; see also Hanley, 471 F.2d at 828, 2 ELR at 20719.

76. 471 F.2d at 828, 2 ELR at 20719; see 5 U.S.C. § 706(2)(A), (D), ELR STAT. ADMIN. PROC. 007.

77. 471 F.2d at 828, 2 ELR at 20719.

78. 718 F.2d. 29, 14 ELR 20049 (2d Cir. 1983). In Town of Orangetown, the town challenged the approval by EPA of construction grants for the design and expansion of a sewage treatment plant on the grounds that EPA acted unlawfully in failing to prepare an EIS before approving the construction grant. Id. at 31, 14 ELR at 20050.

79. Id. at 35, 14 ELR at 20052 (citing Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029, 13 ELR 20326, 20335 (2d Cir. 1983)).

80. 718 F.2d at 35, 14 ELR at 20052.

81. Id. (citing Overton Park, 401 U.S. at 414, 1 ELR at 20113).

82. 444 U.S. 223, 10 ELR 20079 (1980) (per curiam).

83. 718 F.2d at 35, 14 ELR at 20052 (quoting Strycker's Bay, 444 U.S. at 227, 10 ELR at 20080).

84. 718 F.2d at 35, 14 ELR at 20052. The reviewing court must also ensure that the agency has "considered the relevant areas of environmental concerns … [and has] convincingly documented its determination of 'no significant impact.'" Id.

85. 683 F.2d 80, 12 ELR 21044 (4th Cir. 1982); see also Webb v. Gorsuch, 699 F.2d 157, 13 ELR 20246 (4th Cir. 1983); Gee v. Hudson, 746 F.2d 1471, cert. denied sub nom. Gee v. Boyd, 471 U.S. 1058 (1985).

86. 683 F.2d at 81, 12 ELR at 21044.

87. Id. n.1.

88. 683 F.2d at 82, 12 ELR at 21045 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20532 (1976)).

89. 683 F.2d at 82, 12 ELR at 21045.

90. 427 U.S. 390, 6 ELR 20532 (1976); see Providence Road, 683 F.2d at 87, 12 ELR at 21045.

91. 427 U.S. at 398, 6 ELR at 20533.

92. Id., 6 ELR at 20534.

93. Id., 6 ELR at 20536.

94. Id. at 395, 6 ELR at 20533.

95. Id. at 408-09, 6 ELR at 20536.

96. Id. at 414, 6 ELR at 20538.

97. 764 F.2d 445, 15 ELR 20518 (7th Cir. 1985), cert. denied, 475 U.S. 1055 (1986).

98. 764 F.2d at 449, 15 ELR at 20519 (citing, e.g., Wisconsin v. Weinberger, 745 F.2d 412, 417, 14 ELR 20744, 20746 (7th Cir. 1984)).

99. 524 F.2d 225, 229, 5 ELR 20698, 20699 (7th Cir. 1975), cert. denied sub nom. Nucleus of Chicago Homeowner's Association v. Hills, 424 U.S. 967 (1976).

100. 524 F.2d at 227, 5 ELR at 20698.

101. Id. at 228, 5 ELR at 20699. Some of the proposed impacts put forward by the appellants were the "higher propensity toward criminal behavior" and the "lower commitment to hard work" of low-income housing tenants when compared with members of middle-class neighborhoods. Id.

102. Id. at 229, 5 ELR at 20699 (citing First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1381, 3 ELR 20771, 20776 (7th Cir. 1973)).

103. 807 F.2d 633, 17 ELR 20429 (7th Cir. 1986).

104. The "transloading" facility consisted of:

An access road from the highway, a dumphouse in which tractor-trailer rigs dump coal into an underground hopper, a conveyor belt beneath the hopper that carries the coal underground to the river bank and then, supported by piers, some 300 feet into the river, and a hinged-boom loading chute on a dock where barges are moored and filled with the coal.

Id. at 635, 17 ELR at 20430.

105. Id.

106. Id. at 636, 17 ELR at 20431 (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 6 ELR 20532, 20537 n.21 (1976)).

107. 807 F.2d at 637, 17 ELR at 20431. The "certain factors" included "the effect of truck noise, the impact on nature preserves abutting the proposed route and the unrestricted hours of operation." Id.

108. Id.

109. 717 F.2d 1409, 13 ELR 20888 (D.C. Cir. 1983).

110. Id. at 1410, 13 ELR at 20889.

111. Id. at 1413, 13 ELR at 20890 (citing Cabinet Mountains Wilderness v. Peterson, 685 F.2d. 678, 681, 12 ELR 21058, 21059 (D.C. Cir. 1982); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002, 9 ELR 20575, 20579 (D.C. Cir. 1979), cert. denied, 445 U.S. 915 (1980)).

112. 717 F.2d. at 1413, 13 ELR at 20890 (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 6 ELR 20532, 20537 n.21 (1976)).

113. 717 F.2d at 1413, 13 ELR at 20890 (citing Cabinet Mountains Wilderness, 685 F.2d at 682, 12 ELR at 21060). In a recent opinion, the D.C. Circuit has indicated that an agency's decision to invoke a categorical exclusion (as opposed to a decision not to prepare an EIS because of a FONSI) is subject to arbitrary and capricious review, but the reviewing court need not apply the four-part test. National Trust for Historic Preservation in the United States v. Dole, 828 F.2d 776, 18 ELR 20123 (D.C. Cir. 1987).

114. 610 F. Supp. 829, 15 ELR 20533 (1985).

115. Id. at 832, 15 ELR at 20534. The Reagan Administration proposed the construction in response to alleged violations by the Soviet Union of an international convention that "outlawed the development, production or stockpiling of microbial or biological weaponry." Id. at 832 n.2, 15 ELR at 20534 n.2.

116. 610 F. Supp. at 837, 15 ELR at 20536 (quoting Cabinet Mountains Wilderness, 685 F.2d at 681, 12 ELR at 21059).

117. 610 F. Supp. at 837, 15 ELR at 20536 (quoting Foundation on Economic Trends v. Heckler, 756 F.2d 143, 15 ELR 20248 (D.C. Cir. 1985)).

118. 610 F. Supp. at 838, 15 ELR at 20537 (quoting Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 13 ELR 20544, 20546 (1983)).

119. 610 F. Supp. at 838, 15 ELR at 20537. Notwithstanding this deferential standard, the court found the Army's decision not to prepare an EIS to be arbitrary and capricious because the EA represented "an amalgam of conclusory statements and unsupported assertions of [no impact]." Id. at 841, 15 ELR at 20538.

120. 471 U.S. 1058. See supra notes 20-25 and accompanying text.

121. 626 F.2d 1068, 10 ELR 20533 (1st Cir. 1980).

122. Gee v. Boyd, 471 U.S. at 1059.

123. 626 F.2d at 1070, 10 ELR at 20533.

124. Id. at 1072, 10 ELR at 20534. The court stated:

[T]his substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The Court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns.

Id. (citing Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 10 ELR 20079, 20080 (1980) (per curiam)).

125. The chief procedural question to be decided de novo is whether the agency properly prepared an EIS, a "detailed statement" discussing "alternatives to the proposed action." 626 F.2d at 1072, 10 ELR at 20534 (citing Monroe County Preservation Council, Inc. v. Volpe, 472 F.2d 693, 3 ELR 20006 (2d Cir. 1972)).

126. 444 U.S. 223, 10 ELR 20079 (1980) (per curiam).

127. Grazing Fields, 626 F.2d at 1072 n.2, 10 ELR at 20534 n.2. Criticizing the district court's approach, the Court of Appeals noted that "no issue relating to the procedural requirements of NEPA was presented to or decided by the [Supreme Court in Strycker's Bay]." Id. (emphasis by the court).

128. Id. at 1075, 10 ELR at 20536.

129. Grazing Fields Farm v. Goldschmidt, 11 ELR 20172 (D. Mass. 1980).

130. Id. at 20173 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 8 ELR 20288, 20297 (1978)).

131. 562 F. Supp. 188, 13 ELR 20700 (D.P.R. 1983), aff'd sub nom. Quinones-Lopez v. Coco Lagoon Development Corp., 733 F.2d 1, 14 ELR 20445 (1st Cir. 1984). On appeal, the First Circuit perpetuated the uncertainty concerning its standard of review. The court first seemed to equate arbitrary and capricious review with reasonableness review, and then stated, "We need not enter the luxuriant jungle of differing review descriptions here, … for the Corps' decision is sufficiently well-supported to withstand even strict judicial scrutiny." 733 F.2d at 2-3, 14 ELR at 20446. However, the court appeared to regard the arbitrary and capricious standard as the appropriate level of review. Id.

132. 562 F. Supp. at 189-90, 13 ELR at 20700.

133. Id. at 190, 13 ELR 20701. The court went on to state that

[t]his standard is highly deferential to agency action, presumes its regularity and proscribes the substitution of judicial opinion for that of the agency if a convincing basis for the agency's decision is shown.

Id. at 190-91, 13 ELR at 20701 (citing Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 282, 11 ELR 20459, 20462 (D.C. Cir. 1981)).

134. 562 F. Supp. at 191, 13 ELR at 20701 (citing Maryland National Capital Park & Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1040, 3 ELR 20702, 20706 (D.C. Cir. 1973)).

135. 562 F. Supp. at 191, 13 ELR at 20701. Applying the arbitrary and capricious standard, the court concluded that the administrative record contained convincing evidence to sustain the Corps' decision not to prepare an EIS. Id.

136. 659 F.2d 74, 11 ELR 20986 (6th Cir. 1981) (per curiam).

137. 33 U.S.C. § 403.

138. 33 U.S.C. § 1344, ELR STAT. FWPCA 054.

139. Onton Dock, 659 F.2d at 75, 11 ELR at 20986.

140. Id. at 77, 11 ELR at 20987 (Edwards, C.J., dissenting).

141. Id. at 76, 11 ELR at 20987.

142. Id.

143. Id.

144. In litigation, the Corps takes the position that the proper standard of review is the arbitrary and capricious standard. See Louisiana v. Lee, 772 F.2d 1081, 15 ELR 20609 (5th Cir. 1985).

145. 472 F.2d 463, 3 ELR 20041 (5th Cir. 1973).

146. Id. at 464, 3 ELR at 20041.

147. Id. at 465, 3 ELR at 20041. The entirety of the opinion makes it clear that the word "relaxed" in this context means "broad" or "expanded."

148. Id. at 466, 3 ELR at 20041-42.

149. Id. 3 ELR at 20042. The court explained that

NEPA was intended not only to insure that the appropriate responsible official considered the environmental effects of the project, but also to provide Congress (and others receiving such recommendation or proposal) with a sound basis for evaluating the environmental aspects of the particular project or program.

Id.

150. Id.

151. 401 U.S. 402, 1 ELR 20110 (1971). See supra notes 62-70 and accompanying text.

152. See supra notes 66-70 and accompanying text.

153. 401 U.S. at 415, 1 ELR at 20113-14.

154. Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042.

155. Id. The Save Our Ten Acres court cited Environmental Defense Fund, Inc. v. United States Army Corps of Engineers, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972), in support of its interpretation that Overton Park established a bifurcated standard of review. 472 F.2d at 466 n.5, 3 ELR at 20042 n.5.

156. 472 F.2d at 466, 3 ELR at 20042.

157. Id. at 467, 3 ELR at 20042. This analysis has been interpreted by subsequent courts as shifting the burden of proving reasonableness to the agency, after plaintiff has made its initial showing. See Winnebago Tribe of Nebraska v. Ray, 621 F.2d. 269, 271, 10 ELR 20243, 20244 (8th Cir. 1980).

158. 472 F.2d at 467, 3 ELR at 20042 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 335 F. Supp. 873, 876-77, 2 ELR 20061, 20062 (W.D. Tenn. 1972) (on remand)).

159. 472 F.2d at 467, 3 ELR at 20042-43.

160. Id., 3 ELR at 20043. The court emphasized that "it is not the province of the courts to review any actual decision on the merits (if one be required) as to the desirability vel non of the project." Id.

161. Id.

162. See Fritiofson v. Alexander, 772 F.2d 1225, 15 ELR 21070 (5th Cir. 1985); Louisiana v. Lee, 758 F.2d 1081, 15 ELR 20609 (5th Cir. 1985); Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 15 ELR 20614 (5th Cir. 1985); Citizen Advocates for Responsible Expansion v. Dole, 770 F.2d 423, 15 ELR 20967 (5th Cir. 1985); Save Our Wetlands v. Sands, 711 F.2d 634, 13 ELR 20851 (5th Cir. 1983). See also Dardar v. Lafourche Realty Co., 639 F. Supp. 1525, 17 ELR 20083 (E.D. La. 1986); Save Our Wetlands v. Witherspoon, 638 F. Supp. 1158, 16 ELR 20972 (E.D. La. 1986); Bayou St. Johns Improvement Ass'n v. Sands, 13 ELR 20011 (E.D. La. 1982).

163. 772 F.2d 1225, 15 ELR 21070 (5th Cir. 1985).

164. The proposed Venetian housing development would consist of homes built along the shores of manmade canals; homeowners would be able to store their boats in the canals and have access to Galveston Bay. Id. at 1227, 15 ELR at 21071.

165. Id.

166. Id.

167. Id. at 1228, 15 ELR at 21071.

168. Id. at 1230, 15 ELR at 21072.

169. Fritiofson v. Alexander, 592 F. Supp. 120, 122, 14 ELR 20266, 20267 (S.D. Tex. 1984).

170. Fritiofson, 772 F.2d at 1234, 15 ELR at 21074. The developer also argued that the district court "has gone much further than [satisfying itself that the agency had taken a 'hard look'] and has, in reality, labeled the Corps' action unreasonable upon a simple finding that cumulative impacts will exist, without the requisite discussion of the potential significance of those impacts." Id. In effect, the developer argued that the Fifth Circuit should adopt the "hard look" approach being followed by the circuits applying the arbitrary and capricious standard of review. See supra notes 82-84 and accompanying text.

171. 772 F.2d at 1238 n.6, 15 ELR at 21076 n.6.

172. 444 U.S. 223, 10 ELR 20079 (1980). See supra notes 82-83 and accompanying text.

173. 427 U.S. 390, 6 ELR 20532 (1976). See supra notes 90-96 and accompanying text.

174. 772 F.2d at 1238 n.6, 15 ELR at 21076 n.6.

175. Id. at 1238, 15 ELR at 21076.

176. Id. (emphasis added).

177. Id. (emphasis added).

178. Id., 15 ELR at 21076-77 (emphasis by court). "The test is whether there is a possibility, not a certainty, of significant impacts." 772 F.2d at 1239 n.7, 15 ELR at 21077 n.7. See also Louisiana v. Lee, 758 F.2d 1081, 15 ELR 20609 (5th Cir. 1985). In overturning the district court decision that the plaintiffs must demonstrate that the project would have a significant impact, the Louisiana v. Lee court ruled that such a requirement was unrealistic because "[p]laintiffs would have to prove an absolute without the benefit of the factual basis Congress intended to provide by an impact statement." Id. at 1084, 15 ELR at 20610-11.

179. 772 F.2d at 1239, 15 ELR at 21077.

180. 772 F.2d 1081, 15 ELR 20609 (5th Cir. 1985). This case involved a challenge of six shell dredging permits that were renewed without the preparation of an EIS. Id. at 1082, 15 ELR at 20609.

181. Id. at 1084, 15 ELR at 20610 (quoting Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042).

182. 772 F.2d at 1084, 15 ELR at 20610 (citing Save Our Ten Acres, 472 F.2d at 465-66, 3 ELR at 20042).

183. 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973).

184. Wyoming Outdoor Council v. Butz, 359 F. Supp. 1178, 3 ELR 20827 (D. Wyo. 1973).

185. The court based its conclusion on the wording in the APA that mandates reviewing courts to "hold unlawful and set aside agency action … found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 484 F.2d at 1249, 3 ELR at 20832 (emphasis added) (quoting 5 U.S.C. § 706(2)(A), ELR STAT. ADMIN. PROC. 007).

186. 484 F.2d at 1249, 3 ELR at 20831. See NEPA § 102, 42 U.S.C. § 4332, ELR STAT. NEPA 003-004.

187. 484 F.2d at 1249, 3 ELR at 20831 (citing Save Our Ten Acres, 472 F.2d at 465, 3 ELR at 20042).

188. Id., 3 ELR at 20832.

189. 484 F.2d at 1250-51, 3 ELR at 20832.

190. Park County Resource Council, Inc. v. U.S. Dep't of Agriculture, 817 F.2d 609, 621, 17 ELR 20851, 20856 (10th Cir. 1987). Park County involved a challenge to the Bureau of Land Management's decision not to prepare an EIS prior to issuing oil and gas leases in national forests in the Rocky Mountain region. Id. at 612, 17 ELR at 20851.

191. Id. at 621, 17 ELR at 20856 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 6 ELR 20532, 20537 n.21).

192. 817 F.2d at 622, 17 ELR at 20856 (quoting Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 13 ELR 20544).

193. 621 F.2d 269, 10 ELR 20243 (8th Cir. 1980), cert. denied, 444 U.S. 836 (1980).

194. 33 U.S.C. § 403.

195. 621 F.2d at 270, 10 ELR at 20243.

196. 621 F.2d at 271, 10 ELR at 20243-44 (citing Save Our Ten Acres, 472 F.2d at 467, 3 ELR at 20042).

197. 621 F.2d at 271, 10 ELR at 20244.

198. Id. (citing Hiatt Grain & Feed, Inc. v. Bergland, 446 F. Supp. 457, 490 (D. Kan. 1978), aff'd, 602 F.2d 929 (10th Cir. 1979)).

199. 621 F.2d at 271, 10 ELR at 20244 (citing Save Our Ten Acres, 472 F.2d at 467, 3 ELR at 20042; Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425, 3 ELR 20287, 20288 (5th Cir. 1973); Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517, 522, 8 ELR 20324, 20325 (5th Cir. 1978)).

200. 621 F.2d at 271, 10 ELR at 20244.

201. Id. at 274, 10 ELR at 20245.

202. Id. at 272, 10 ELR at 20244-45. The court did not explicitly state that the Corps' determination to ignore the arguably nonfederal portions of the powerline was "reasonable." However, the structure of the opinion indicates that this was the basis of the court's decision to uphold the Corps on this issue. The court first established that the "reasonableness" standard, applied with a shifting burden of proof, is the appropriate scope of judicial review for an agency's decision not to conduct an EIS. 621 F.2d at 271, 10 ELR at 20244. The court then analyzed the breadth of NEPA's EIS requirements for "Federal actions," and concluded that "the Corps did not have sufficient control and responsibility to require it to study the entire project." Id. at 272, 10 ELR at 20244.

203. Id. at 274, 10 ELR at 20245 (citing Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir. 1976)). The court rejected the claim because the plaintiffs did not allege it in their complaint and the district court did not consider the claim in its opinion. 621 F.2d at 274, 10 ELR at 20245.

204. 621 F.2d at 274, 10 ELR at 20245.

205. 681 F.2d 1172, 12 ELR 20968 (9th Cir. 1982). See also Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986, 15 ELR 20455, 20459 (9th Cir. 1985) (decision not to prepare an EIS in conjunction with Fish and Wildlife Service decision to issue a permit authorizing the taking of endangered species was reasonable); Steamboaters v. Federal Energy Regulatory Commission, 759 F.2d 1882, 1392, 15 ELR 20505, 20509 (9th Cir. 1985) (decision not to prepare an EIS prior to granting a small-scale hydropower project an exemption from federal licensing procedures was unreasonable).

206. 681 F.2d at 1174, 12 ELR at 20968.

207. Id.

208. Id. at 1175, 12 ELR at 20968-69. The environmentalists were especially concerned because the affected herd was one of the few herds of bighorn sheep currently experiencing a rise in population. Id., 12 ELR at 20969.

209. Id. at 1176, 12 ELR at 20969.

210. Id. Alternative A provided unlimited year-round use of the reconstructed road and a road already in existence and being used. Alternative C provided for year-round use of the reconstructed road and no use of the existing road. Alternative D, the no-action alternative, provided use only of the existing road. Id.

211. Id. The majority of responses to the draft EA favored the no-action alternative. Id. at n.17.

212. Id. at 1177, 12 ELR at 20969.

213. Id. at 1182, 1183, 12 ELR at 20972. The Ninth Circuit also found that the Forest Service's decision not to prepare an EIS was unreasonable because of its failure to comply with its own regulations. Id. These regulations provide that the highly controversial nature of a proposed action is a consideration to be used in determining whether a proposed action will significantly affect the quality of the human environment. Id. at 1182, 12 ELR at 20972. The Ninth Circuit concluded that because the Forest Service received "numerous responses from conservationists, biologists, and other knowledgeable individuals, all highly critical of the EA," the action was "the type of 'controversial' action for which an EIS must be prepared." Id.

214. Id. at 1177 n.24, 12 ELR at 20969 n.24.

215. Id. This analysis is similar to that of the Tenth Circuit in Wyoming Outdoor Coordinating Council. See supra notes 183-188 and accompanying text.

216. Id. at 1178, 12 ELR at 20970 (quoting Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 597, 11 ELR 20537, 20541 (9th Cir. 1981) (emphasis by Columbia Basin court)).

217. 681 F.2d at 1178, 12 ELR at 20970.

218. Id. at 1179, 12 ELR at 20970. The environmentalists presented evidence that although the exact composition and function of the "mineral lick" is not known, it appears to provide a nutrient to the sheep herd as well as to serve as "a forum for intraspecies interaction necessary for the well being and productivity of the herd." Id. at 1176, 12 ELR at 20969.

219. Id. at 1179, 12 ELR at 20970-71. The court was concerned with the agency's failure to consider one comment to the EA, which argued that sheep stress caused by traffic on the reopened road could increase mortality, inhibit reproduction, and lead to "aberrant behavior among younger sheep." Id., 12 ELR at 20970.

220. 840 F.2d 714, 18 ELR 20869 (9th Cir. 1988).

221. Id. at 717, 18 ELR at 20870.

222. Id. at 717-18, 18 ELR at 20870 (quoting Steamboaters v. Federal Energy Regulatory Commission, 759 F.2d 1382, 1383, 15 ELR 20505, 20510 (9th Cir. 1985) (emphasis by court)).

223. 16 ELR 20759 (D. Mont. 1986).

224. Id. at 20762.

225. 681 F.2d 1172, 12 ELR 20968. See supra notes 205-219 and accompanying text.

226. 16 ELR at 20760 (citing Foundation for North American Wild Sheep, 681 F.2d at 1177, 12 ELR at 20968.)

227. 16 ELR at 20760.

228. 799 F.2d 687, 16 ELR 20994 (11th Cir. 1986).

229. The three-judge panel that decided Manasota-88 was required to follow the decisions of the former Fifth Circuit rendered prior to October 1, 1981, when the Fifth Circuit was divided into the Eleventh Circuit and the "new" Fifth Circuit. Id. at 692 n.7, 16 ELR at 20996 n.7 (citing Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc)). Therefore, the Fifth Circuit's decision in Save Our Ten Acres was binding precedent on the Manasota-88 panel. Id. See supra notes 144-161.

230. 799 F.2d at 688. The NPDES permit program was established by FWPCA § 402, 33 U.S.C. § 1342, ELR STAT. FWPCA 051-054.

231. 799 F.2d at 692, 16 ELR at 20996.

232. Id. at 694, 16 ELR at 20997.

233. Id., 16 ELR at 20996-97. FWPCA § 511(c)(1), 33 U.S.C. § 1371(c)(1), ELR STAT. FWPCA 061, provides:

Except for … the issuance of a[n NPDES] permit under section 1342 of this title for the discharge of any pollutant by a new source as defined in section 1316 of this title, no action by the Administrator taken pursuant to this chapter shall be deemed a major federal action significantly affecting the quality of the human environment within the meaning of [NEPA]….

234. 799 F.2d at 694, 16 ELR at 20997. The court concluded that "we cannot say that the EPA determination that the proposed phosphogypsum disposal area is not a new source was arbitrary or capricious, and therefore, that the Agency's decision not to prepare an EIS was unreasonable." Id. It is not unusual for a court to treat deferentially an agency's interpretation of its statute. See supra note 65 and accompanying text.

235. Id. at 692 n.8, 16 ELR at 20997 n.8 (citing River Road Alliance, 764 F.2d at 449, 15 ELR at 20519). However, a recent decision by the Eleventh Circuit indicates that reasonableness is the broader standard of review. C.A.R.E. Now, Inc. v. Federal Aviation Administration, 844 F.2d 1569, 1572, 18 ELR 21081, 21082 (11th Cir. 1988).

236. 799 F.2d at 692, n.8, 16 ELR at 20997 n.8.

237. 687 F.2d 732, 12 ELR 21029 (3d Cir. 1982).

238. Id. at 742, 12 ELR at 21033.

239. 625 F.2d 1068, 11 ELR 20833 (3d Cir. 1980).

240. 687 F.2d at 742, 12 ELR at 21033.

241. Id. (quoting Concord Township, 625 F.2d at 1073-74, 11 ELR at 20835-36).

242. Id. at 742, 12 ELR at 21033 (quoting Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320, 4 ELR 20700, 20702 (8th Cir. 1974)).

243. Id. at 742, 12 ELR at 21033-34 (quoting Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973)).

244. Id. at 742 n.24, 12 ELR at 21034 n.24 (quoting Pokorny v. Costle, 464 F. Supp. 1273, 1276, 9 ELR 20330 (digest) (D. Neb. 1979)). The Third Circuit held that "the petitioner is obligated to demonstrate specifically how and why [NRC's FONSI] was somehow erroneous or unreasonable." Township of Lower Alloways Creek, 687 F.2d at 743, 12 ELR at 21034.

245. 687 F.2d at 743, 12 ELR at 21034.

246. Id. at 746, 12 ELR at 21036.

247. Id. The court quoted from the petitioner's brief that "[t]o a layman, it seems rather obvious that increasing spent fuel storage … by a factor of four or five times is a major federal action having potential significant effect on the human environment." Id.

248. Id.

249. See Gee v. Boyd, 471 U.S. 1058, 1059 (White, J., dissenting). Justice White stated:

This conflict is not merely semantic or academic. Certainly, there are individual cases in which application of one standard rather than the other makes no difference. But the lower courts that have wrestled with the question of what rule to adopt have not viewed the issue as one that might be settled by a flip of a coin.

Id. See supra notes 1-25 and accompanying text.

250. 471 U.S. at 1060 (quoting Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042).

251. 471 U.S. at 1060 (White, J., dissenting).

252. 472 F.2d 463, 3 ELR 20041; see supra notes 144-161 and accompanying text.

253. 401 U.S. 402; see supra notes 151-155 and accompanying text.

254. Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042.

255. See supra notes 66-70 and accompanying text.

256. See supra notes 151-161 and accompanying text.

257. 472 F.2d at 466, 3 ELR at 20042.

258. Id.

259. 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972). See supra notes 71-77 and accompanying text.

260. See id.

261. See id.

262. 444 U.S. 223, 10 ELR 20079 (1980) (per curiam).

263. 718 F.2d 29, 35, 14 ELR 20049, 20052 (2d Cir. 1983). See supra notes 78-84 and accompanying text. Strycker's Bay involved a proposal by the New York City Planning Commission, in conjunction with the United States Department of Housing and Urban Development, to build low- and middle-income housing in Manhattan. 444 U.S. at 223-24, 10 ELR at 20079. When the plan, which originally called for 70 percent of the housing to be middle-income housing, was amended to provide for more low-income housing, several interested parties brought suit alleging that NEPA had not been complied with. Id. at 224, 10 ELR at 20079.

264. Although HUD had not prepared an EIS pursuant to NEPA § 102(2)(C) (42 U.S.C. § 4332(2)(C), ELR STAT. NEPA 003-004), the central issue of the litigation was whether HUD had complied with § 102(2)(E), which requires agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E), ELR STAT. NEPA 004. See 444 U.S. at 225, 10 ELR at 20079. The requirement of § 102(2)(E) is independent of the requirement to prepare an EIS established at § 102(2)(C), and applies whether an EA or EIS is prepared. See, e.g., Van Abbema v. Fornell, 807 F.2d 633, 636, 17 ELR 20429, 20431 (7th Cir. 1986); River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d 445, 452, 15 ELR 20518, 20521 (7th Cir. 1985).

265. 444 U.S. at 227, 10 ELR at 20080.

266. Id. But see id. at 228-29, 10 ELR at 20080-81 (Marshall J., dissenting) (the Supreme Court's earlier NEPA precedents do not support the per curiam's suggestion that substantive review is limited to an examination of whether the agency considered the environmental consequences of a proposed action).

267. 772 F.2d 1081, 15 ELR 20609 (5th Cir. 1985).

268. 772 F.2d 1225, 15 ELR 21070 (5th Cir. 1985). See supra notes 163-179 and accompanying text.

269. See, e.g., Onton Dock, 659 F.2d at 75, 11 ELR at 20987; see supra notes 136-143 and accompanying text.

270. See, e.g., River Road Alliance, 764 F.2d at 449, 15 ELR at 20519; see supra notes 11-16 and accompanying text.

271. Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042. See supra notes 156-159 and accompanying text.

272. Save Our Ten Acres, 472 F.2d at 466, 3 ELR at 20042. See supra note 157 and accompanying text.

273. See supra notes 174-179 and accompanying text.

274. Winnebago Tribe, 621 F.2d at 271, 10 ELR at 20244. See supra notes 193-204 and accompanying text.

275. Foundation for North American Wild Sheep, 681 F.2d at 1178, 12 ELR at 20970; see supra notes 205-219 and accompanying text.

276. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. at 558, 8 ELR at 20297.

277. Additionally, some courts point to the speculative nature of an EA in comparison to an EIS as support for the use of a more reaching standard of review. See Louisiana v. Lee, 772 F.2d at 1084, 15 ELR at 20610.

278. Grazing Fields Farm, 626 F.2d at 1072, 10 ELR at 20534; see supra notes 120-130 and accompanying text.

279. Id. (citing Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. at 227, 10 ELR at 20080).

280. River Road Alliance, 764 F.2d at 450, 15 ELR at 20519-20. The court stated that:

[T]he issue for us is not whether National Marine Service's barge fleeting facility was (and will again be, if we reverse) an unfortunate eyesore, marring one of the few remaining spots of essentially unspoiled natural beauty on the Mississippi River in the general vicinity of St. Louis; undoubtedly it is that…. It is not whether we, if were the Army Corps of Engineers, would have denied the permit. It is whether the Corps exceeded the bounds of its decision-making authority in concluding that the fleeting facility would not have so significant an impact on the environment as to require a more elaborate study of environmental consequences.

Id.

281. Town of Orangetown, 718 F.2d at 35, 14 ELR at 20052. See supra notes 78-84 and accompanying text.

282. 718 F.2d at 35, 14 ELR at 20052.

283. See, e.g., North Carolina v. Hudson, 665 F. Supp. 428, 437, 17 ELR 21260, 21263 (E.D.N.C. 1987).

284. See Fritiofson, 772 F.2d at 1338, 15 ELR at 21076. See also supra notes 163-179 and accompanying text.

285. Gee v. Boyd, 471 U.S. at 1060. See supra notes 20-25 and accompanying text.

18 ELR 10331 | Environmental Law Reporter | copyright © 1988 | All rights reserved