An Administrative Lawyer in the Wilderness of Environmental Law: Judicial Review of Compliance with NEPA

Jerry L. Mashaw, Professor of Law, University of Virginia

1. Is there a special role for courts in reviewing NEPA claims that does not obtain in the general run of administrative law cases?

Arguments for special role

a. usual expertise claim less relevant

b. diffusion of responsibility for NEPA implementation

c. peculiarly important policy involved

d. need for counterweight to agency mission-orientation

2. It seems to me that these are all good reasons to expect a somewhat special role for courts, but they are reasonably well-recognized factors in judicial review generally.

Where an agency operates outside its usual substantive area, or casts doubt on its own expertise by vacillation or inadequate articulation of policy, courts generally take a closer look than in the general run of cases.

Moreover, one always finds close scrutiny in areas which implicate constitutional values — discrimination, free speech or procedural due process — even though a direct constitutional challenge is not involved.

3. The question then is whether the arguments for a special judicial role are so pervasive in the NEPA context as to make judicial review there consistently different from judicial review elsewhere.In other terms, is it necessary for the courts to develop special principles which will facilitate judicial review and which will involve the courts in the substantive NEPA judgments to a greater degree than in other areas of agency decision-making?

4. My answer is both "yes" and "no." Yes the courts need to do some careful thinking about how to do the job of review required by NEPA. But, "No," no special principles are necessary to get that job done. The general kitbag of judicial review techniques and standards of review will suffice.

5. Issues Facing the Reviewing Court

a. preliminary hurdles (jurisdiction, standing, sovereign immunity).

b. review of decision not to file EIS

c. review of adequacy of EIS

d. review of substantive decision

6.Preliminary Hurdles

The approach courts are taking here seems to be same as in other areas:

a. treat standing as a question of pleading

b. ignore sovereign immunity

c. assume jurisdiction on some combination of APA, federal question statute, declaratory judgment and mandamus statute or statute directly involved in litigation

There is one peculiar problem here involving prematurity and laches — review of adequacy of statement where there are further agency proceedings before final judgment in which environmental issues may be raised. Should the court allow immediate review of EIS or require exhaustion of administrative process and review of EIS in context of final decision? If immediate review is allowed, is failure to review at that point a waiver because of subsequent agency use EIS in decision process?

In my view the complaining party should be allowed to take his choice.

7. Review of Decision Not To File

It has been suggested that review should be de novo here because the issue is critical to effectiveness of NEPA.

I disagree because (1) I see no warrant in APA for de novo review in the sense of court substituting its judgment for the agency's and (2) this threshold sort of issue is not one that shold occupy trial court time.

What is needed is a traditional sort of review for (1) proper interpretation of the statute and (2) reasonableness of judgment, which can be dealt with on cross-motions for summary judgment.

I would suggest therefore a combination of an Overton Park style interpretation of the statute ("major" and "significant" = "substantial" or "non-trivial") with an approach similar to that taken by district courts in FDA seizure actions (see discussion in United States v. An Article of Drug … "Mykocert," 345 F. Supp. 571 (N.D. Ill. 1972), that is, that plaintiffs' affidavits describing environmental impacts of substance prove "significance" as a matter of law, even if contradicted by agency affidavits. The justification for this approach, in short, is that conflicting submissions on environmental issues of substance should prove the need for an EIS, analyzing the potential impacts as a basis for further agency action and perhaps eventual court review.

A strict requirement of this sort should not produce inseparable obstacles for agencies if they take a generic approach to statements relating to repetitive or "routine" projects and operations. Moreover, the approach suggested has the advantages of (1) strong support for NEPA; (2) limiting the court time necessary to resolve this threshold sort of issue; and (3) yet requiring some showing by a claimant beyond mere allegations of environmental impact.

[4 ELR 50148]

8. Adequacy of Statement

There seems to be some movement in the cases toward a "good faith" standard of review. This is perhaps understandable because the "mission orientation" issue seems to be particularly troublesome here.

However, I think it is an unhappy characterization of what the courts should be looking for because (1) it unduly limits the scope of review and (2) it inappropriately suggests an inquiry into mental processes.

(1) That scope of review is unduly limited may seem strange because "good faith" seems a stricter standard than "arbitrary and capricious." My view, however, is that the question here is subject to independent judicial review or at least review as independent as the closely analogous judicial review of agency "findings" in adjudication or the adequacy of an agency's "concise general statement of basis and purpose" in rulemaking.

In either of these cases the courts look not merely for good faith but for adequacy to the purpose of which the findings or statement is required. And in both cases the function is to demonstrate the attention given to relevant issues and to facilitate review. If the statement is uninformative on an issue of relevance or fails to provide an adequate basis for reviewing the ultimate conclusions reached the court may remand. The same would seem true of EIS reviews for adequacy.

Of course, the agency is always given some discretion, even when review is technically independent, and that approach would certainly apply here. But, the question should not be whether there has been a "good faith effort" but whether there has been substantial and adequate compliance with NEPA's "procedural" requirements.

(2) Moreover, because the EIS is a statement of environmental findings there should be no suggestion that proof of the decision-maker's mental state is a relevant consideration. Overton Park allowed such an inquiry only where the administrative record did not reveal findings.

Nor should a policy bias in favor of the administrator's program be a relevant concern. Prejudgment is an issue only as to adjudicative facts, and only in the limited class of cases in which some affirmative evidence of pre-judgment of relevant facts can be adduced should "bias" be an issue.

(This may be what the courts are saying when they assert that "subjective impartiality" is not required, but that is a rather vague way of putting a traditional administrative law point. And when they combine that disclaimer with the statement that "good faith objectivity" is required I become lost.)

9. Review of Substantive Decision

The problem is one of how to review ultimate weighing of costs and benefits.

(A) It seems to me again that the traditional standard for reviewing informal decision-making — the arbitrary and capricious standard — is apt. As Overton Park says, the question is consideration of relevant factors and clear error of judgment. This fits the usual cost benefit questions rather nicely because there the issues usually are (1) should this or that benefit or cost be counted and (2) was the weighing process sensible.

Question #(1) can be determined from the statutory language and from context (you don't consider water quality improvements made necessary by the project as benefits for example), and #(2) involves imponderables, e.g., discount rate, project life, and assignment of values to unpriced amenities which should only be overturned when clearly unsupported by theory or past practice.

(B) Caveat — courts must remember that the EIS is not the whole record, and that it may take on disproportionate weight because it may be the only part of the decision subject to extensive documentation and written analysis.