LAW
Healy Enviro Law Fall 2012.docx

52 eis look at alternatives and their effects a take

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52 EIS = look at alternatives and their effects
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a. Take away – feasibility defines bounds of “considering alternatives” requirement . i. Alternatives must be more than remote & speculative possibilities. ii. Environ effects of alternatives must be ascertainable iii. No requirement that Agency consider every conceivable alternative. b. Also, the commentator must participate in a meaningful way: provide the Agency with relevant facts; facts need to be sufficient to cause reasonable person to enquire further. i. Not met by P here, way too vague. iv. Role of Uncertainty and New Information: 1. Alaska v. Andrus a. NEPA imposes information gathering obligations, but it also gives Agency discretion to be okay with uncertainty. Here, the DOI considered the costs of uncertainty, took the hard look, and proceeded. This is fine. b. Agency looked at uncertainty/info and made a judgment they were delegated to make by Congress. c. Contrast w/ next case 2. Sierra Club v. Army Corps a. F – During preparation of the EIS, studies showed the presence of striped bass in this river. The Army Corps ignored this information and proceeded to believe that there were no fish. b. H – Agency has acted in bad faith by ignoring the fish; differs from Andrus because there was information the Agency just flat ignored. Impermissible . l. In Administrative Law reviewing courts only look at the information the Agency had at the time of the decision. However, NEPA goes further with supplemental EIS. m. Supplemental EIS i. CEQ Regs (1502.9(c)) provide that a supplemental EIS is required in 2 circumstances: 1. Agency changes proposal in ways that may cause significant impacts on the environment; OR 2. Significant new information emerges related to the impacts of the proposal. ii. Marsh court also requires supplemental EIS when: 1. Federal actions is incomplete and new information shows that remaining action MAY effect environment to a significant degree or in a manner not considered. 53
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a. Basically, pending action which will cause significant impacts that haven’t been considered. n. Proposals for Legislation and EIS i. EIS is also required when “an agency makes a proposal for legislation significantly affect the quality of the human environment.” ii. Public Citizen v. USTR (1994) 1. Petitioners wanted an EIS for NAFTA, but since there is no private AG provision in NEPA, they sued under the APA. 2. H – President (who made NAFTA) is not an agency and thus is not subject to the APA’s “final agency” review. iii. Department of Transportation v. Public Citizen (2004) 1. Mexican trucker case. 2. P’s wanted Agency to consider the effects the Mexican trucks would have on our air. 3. H – the Agency could do nothing to curb this air pollution so they are not required to consider them in their EIS. These contravenes the purpose of NEPA : a. Detailed information for the Agency to evaluate the environmental impact of its proposal. AND b. Provides information about environmental impacts to public and other interested parties.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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