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NEPA Case Law Update Law Seminars International March 7, 2008—Phoenix, Arizona

NEPA Case Law Update Law Seminars International March 7, 2008—Phoenix, Arizona. Dalva L. Moellenberg Gallagher & Kennedy, P.A. Considering Greenhouse Gas Emissions in EIS. Center for Biological Diversity v. NHTSA , 508 F.3d 508 (9 th Circuit 2007)

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NEPA Case Law Update Law Seminars International March 7, 2008—Phoenix, Arizona

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  1. NEPA Case Law UpdateLaw Seminars InternationalMarch 7, 2008—Phoenix, Arizona Dalva L. Moellenberg Gallagher & Kennedy, P.A.

  2. Considering Greenhouse Gas Emissions in EIS • Center for Biological Diversity v. NHTSA, 508 F.3d 508 (9th Circuit 2007) • NHTSA required to consider impacts of greenhouse gas emissions in EIS for setting fuel economy standards • Public Citizen distinguished based on NHTSA discretion in setting standards • EA inadequate due to lack of cumulative impacts analysis when there was an acknowledged difference in CO2 emissions from the alternative standards considered by the NHTSA • EA did not consider sufficient alternatives • Friends of the Earth v. Mosbacher, 488 F. Supp 2d 889 (N.D. Cal. 2007) • Overseas Private Investment Corporation and Export-Import Bank not exempt from NEPA when investments in foreign projects may impact the domestic environment due to greenhouse gases • No summary judgment on “major federal action” issue and whether actions are cumulative actions requiring a single EIS

  3. Inadequate Consideration of Human Health Risks • Navajo Nation v. USFS, 479 F.3d 1024 (9th Circuit 2007), rehearing en banc granted 506 F.3d 717 • USFS relied upon ADEQ standard permitting use of “A+ reclaimed water” for snowmaking • ADEQ standard disapproved human ingestion • USFS did not study or evaluate potential risk of possible direct human ingestion by skiers of snow made from reclaimed water • No evaluation of “safe” level of exposure • EIS lacked (1) “reasonably thorough discussion” of probable environmental consequences,” (2) an explanation why such discussion is unnecessary, (3) candid acknowledgement of risk, and (4) analysis sufficient to foster informed decision-making and informed public participation

  4. Logging Cases • Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) • Court rejected USFS establishment of categorical exclusion for fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres • EA or EIS not required to promulgate categorical exclusion • USFS failed to show it made a “reasoned decision” based on all factors and information • Problems included “post-hoc rationale,” failure to properly assess significance, failure to define the exclusion with requisite specificity, and basing decision on inadequate record • Oregon Natural Resources Council v. Brong, 492 F.3d 1120 (9th Cir. 2007) • EIS for logging in burned area deficient due to inadequate cumulative impacts analysis • The Lands Council v. Martin, 479 F.3d 1024 (9th Cir. 2007)(denying preliminary injunction on NEPA grounds, but granting it on other grounds); 2007 U.S. App. LEXIS 68973 (9th Cir. 2007)(summary judgment granted for defendant • EIS not categorically required for logging in a roadless area; case-by-case analysis is appropriate

  5. Other Cases • Rattlesnake Coalition v. EPA, 509 F.3d 1095 (9th Cir. 2007) • Level of federal funding insufficient to establish “major federal action” • Complaint based on completed action moot; complaint based on congressional appropriation of funds not ripe • Funding actions not connected • Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 511 F.3d 1011 (9th Cir. 2007) • Draft EA need not be publicly circulated in every case • Agency preparing EA must provide public with sufficient environmental information, considering totality of circumstances, to permit public to provide views and thus inform the decision-making process • EA found to be adequate • NRDC v. Winter, 2008 U.S. App. LEXIS 1427 (9th Cir. 2008) • Scope of injunction against Navy use of mid-frequency sonar • CEQ provided “alternative arrangements” to accommodate “emergency circumstances” under 40 CFR 1506.11

  6. Other Cases • Feldman v. Bomar, 2008 U.S. App. LEXIS 436 (9th Cir. 2008) • NEPA action dismissed as moot due to completion of action • Oregon Natural Resources Council Fund v. Goodman, 505 F.3d 884 (9th Cir. 2007) • EIS violated NEPA due to failure to discuss impact on sensitive species • ski area expansion enjoined • Northern Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007) • Partial injunction allowing some development to proceed pending preparation of supplemental EIS to consider additional alternative • Actions allowed were consistent with alternative that EIS failed to consider

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