Healy Enviro Law Fall 2012.docx

2 inherently flexible goals ii 102 required

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2. “Inherently flexible” goals. ii. §102 Required Procedures 1. These are much more stringent than §101. 2. Requires consideration of environmental impacts of proposed decisions. 3. Detailed statement required : Agency must prepare a detailed statement when proposed activity “ significantly affects the quality of the human environment. 4. Agency must consider alternatives when there are “unresolved conflicts concerning alternative uses of available resources.” 5. Compliance required “to the fullest extent possible.” a. This is not a paper tiger, it’s a strict requirement. b. Clear statutory conflict is needed to avoid procedural requirements. 6. s 47 This is the key part of the statute
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iii. Ultimately, preparation of EIS is the critical requirement . 1. Rationale: bring external pressure on Agencies to acknowledge environment and the internal effect of changing the Agency decision/culture. 2. Effect, Agencies began to hire environmental experts and they could no longer ignore environmental factors. iv. No private cause of action, citizens are only left with APA. But judicial review of NEPA has been found available here (through the APA). e. NEPA Process (see TWEN ws): i. Begin with Environmental Assessment (EA) 1. Includes discussion of alternatives as required by statute. §102(2) (E). 2. If making EIS, no need for EA 3. 50,000 EAs prepared per year. ii. EA leads to FONSI, if no need for EIS . 1. FONSI may be challenged in court because it’s a final action 2. Very common litigation. iii. If making EIS, Agency must provide notice and then prepares a draft EIS . 1. At least 45 days of public comment on draft EIS. iv. After receiving comment, Agency drafts Final EIS, which is published and distributed to interested parties . v. Agency issues Record of Decision 1. Final action, reviewable in court. 2. 500 EIS/year f. NEPA is only procedural, no substantive requirement. i. Strycker’s Bay held that NEPA is merely procedural; no substantive weight has to be given to environmental factors. ii. If agency couples with procedure (“takes the hard look”), no substantive requirement. iii. If NEPA is only procedural, does it still matter? Probably yes: 1. NEPA encourages political feedback and public participation. a. Ensures environmental issues will be acknowledged. 2. NEPA changed the culture of agencies to younger, more environmentally conscious. 3. High cost of NEPA compliance creates an incentive on the agencies iv. Robertson v. Matthew Valley 1. Court said that the value of NEPA is: a. Effect on agency (internal effect b/c agency must carefully consider impacts on the environment). b. Effect on public an interested parties (external effect) 48
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i. Information allows interested parties to advocate for changes in government plans and understand government plans.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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