National Parks & Conservation Ass'n v. Babbitt

Nos. 99-36065, 99-36094 (241 F.3d 722) (9th Cir. February 23, 2001)

ELR Digest

The court reverses a district court decision and holds that the U.S. National Park Service (NPS) violated the National Environmental Policy Act when it implemented a vessel management plan (VMP) for the Glacier Bay National Park in Alaska without preparing an environmental impact statement (EIS). The NPS implemented the VMP, which allowed increased cruise ship entry to the bay, after preparing an environmental assessment (EA) and issuing a decision based on available information. The court first holds, however, that the high degree of uncertainty and the substantial controversy regarding the effects on the quality of the environment in the park each necessitated the preparation of an EIS. The EA described the intensity or practical consequences of the environmental effects of the VMP as unknown, which partly stems from a lack of information about the practical effects of increased traffic on the bay. The EA recognizes that the missing information may be obtainable and would be helpful in evaluating the environmental impact of the VMP, and, therefore, proposed a park research and monitoring program. However, that is the type of information and understanding required before a decision that may have a significant adverse environmental impact is made, and why an EIS must be prepared. The court next holds that the district court erred in finding that the NPS' decision not to prepare an EIS was justified because the uncertainty reflected the existing state of knowledge. The NPS' uncertainty about the environmental effects of the VMP is partly a result of the failure to present proposals with mitigation measures that would offset environmental damage. There is a lack of data to support the NPS' conclusion that the mitigation measures would be adequate in light of the potential environmental harms, no study was conducted to examine the anticipated effects of the mitigation measures, and no criteria were provided for ongoing examination of them or for taking any corrected action needed. Moreover, where, as here, significant environmental damage may occur to a treasured natural resource, the studies must be conducted first, not afterwards. The court further holds that the environmental group demonstrated a sufficient showing of controversy to require preparation of an EIS. Therefore, the court enjoins increased vessel traffic and returns traffic levels to their pre-VMP levels.

The full text of this decision is available from ELR (27 pp., ELR Order No. L-337).

Counsel for Plaintiff
Catherine E. Stetson
Hogan & Hartson
Columbia Sq.
555 13th St. NW, Washington DC 20004
(202) 637-5600

Counsel for Defendants
Sean H. Donahue
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[31 ELR 20437]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]