32 ELR 20642 -- Sierra Club v. United States Department of Energy

Sierra Club v. United States Department of Energy

No. 01-1158 (287 F.3d 1256) (UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT April 19, 2002)

ELR Digest

The court reverses a district court decision holding that an environmental group's claims against the U.S. Department of Energy (DOE) for failing to comply with the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA) before issuing a road easement are not ripe. Although DOE contends that the road may never be built, the environmental group is challenging the granting of the easement, not the building of the road. Thus, the court first holds that a challenge to the failure of an agency to comply with NEPA procedures becomes ripe at the time the failure takes place, assuming the plaintiff has standing to bring the claim, and there is no reason why a procedural challenge to the failure of a federal agency to comply with the ESA's procedures should not be treated in the same manner. In addition, to establish an injury-in-fact from failure to perform a NEPA analysis, and therefore have standing, a litigant must show that the agency created an increased risk of actual, threatened, or imminent environmental harm in making its decision without following NEPA procedures and that this increased risk of environmental harm injures the litigant's concrete interest. The court next holds that the environmental group has standing. The group presented sufficient facts to show that the easement granted by DOE is a necessary step in the construction of a road to advance the expansion of the mining project, which has the potential of harming the environment. The environmental group further alleged facts sufficient to show that increased risk of environmental harm emanating fromthe uninformed decision of DOE to grant the easement affects the group's concrete interest. Thus, the environmental group alleged facts sufficient to establish injury-in-fact. Moreover, the alleged injury is fairly traceable to the failure of DOE to conduct a NEPA and ESA analysis, and the injury is redressable by judicial intervention requiring DOE to undertake a NEPA and ESA analysis. The environmental group, therefore, has standing, and its claims are ripe.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-512).

Counsel for Plaintiff
Neil Levine
Earthjustice Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]