Healy Enviro Law Fall 2012.docx

A this could be in violation of kleppe but the courts

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a. This could be in violation of Kleppe , but the courts haven’t ruled on it. Quick Outline of where we are: (1) Has agency properly defined the scope of the action? (Must connect cumulative ones) (2) Has agency considered direct effects of action, connected actions and also indirect effect ? (3) Are the identified effects significant? If YES, triggers EIS requirement. See below… i. Significance of Effects under NEPA (Key reg. 40 CFR 1508.27) i. Remember: the effects must be significant to trigger EIS. ii. Healy v. Kleindiest 1. The court defined significant - A court must: a. Evaluate Comparative Effects (are the effects of proposal different from existing uses? A change in use tends to be more significant). b. Evaluate Absolute Effects – are effects significant when added to current effects? (aka – is this the straw the breaks the camel’s back?) 2. Note: Friendly Dissent ; if Agency is going to spend this much time on the EA, they should just do an EIS (if it’s close, do EIS). Also, majority is turning the preliminary EA into mini-EIS. It seems close enough, just make EIS. iii. So NEPA requires a significant adverse effect. What happens when you are uncertain of the effect? j. Certainty of Adverse Effects – how certain do the effects have to be? i. Regs say (1508.13) EIS is not required when an action “will NOT have a significant effect on environment.” 50
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ii. By negative implication, upheld by the Courts, the EIS must be prepared if proposal “MAY significantly affect the environment.” iii. Summary of next cases about Certainty of Adverse effects : 1. What is required? a. Consideration of local and broader effects, but local adverse effects are sufficient trigger. ( Evans ) b. Need for EIS is determined ONLY by reference to adverse effects . i. Thus, not netting out of + and – effects. Only adverse c. If Agency relies on mitigation reasons to avoid significant effects, Agency must have substantial evidence to support adequacy of measures ( Hoffman ). d. Statutory Analysis: if the proposal has significant effects, it’s considered a “major federal action.” iv. Anderson v. Evans 1. Agency issues a FONSI, but it’s not ok b/c the Agency never addressed the local impact. The local impact MAY be significant, even if the regional impact is smaill. a. The agency must address significant local impacts. 2. Take away – significant local impacts WILL trigger an EIS. 3. Different focus of EA/EIS: a. Role of EA = determine is there a significant impact ? b. Role of EIS = consider the alternatives & their impacts. i. Should the Agency re-shape the proposal based on these alternatives? v. Center for Bio Diversity v. NHTSA 1. Agency modified CAFÉ standards on car emission, then issues FONSI. 2. I – with global warming, how much does Agency have to analyze global warming effects? Effects of GHGs?
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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