Unpacking the Ninth Circuit’s Decision on NEPA’s Environmental Review Process

Hey folks, let’s chat about a recent Ninth Circuit ruling that’s stirring up the environmental law scene. It’s not every day that a court case gives us a peek into the complex world of environmental assessments and policy, but when it does, it’s worth a closer look. Interestingly, the big talk isn’t just about what the court covered, but what it seemingly overlooked: a significant update to the National Environmental Policy Act (NEPA) from last year that’s pretty relevant to the case at hand. Seems like the memo on NEPA’s facelift hasn’t quite made it to the federal courts’ desks yet.

A Glimpse Into the Legal Landscape

Before we dive in, let’s lay down some groundwork. NEPA typically needs federal agencies to whip up an environmental assessment, sort of a condensed version of an environmental impact statement, whenever they think a project won’t make a big environmental splash. But there’s a shortcut available. If an agency has what’s called a categorical exclusion (CE), it can skip the assessment step. A CE is basically a rule that says certain types of actions usually don’t cause significant environmental effects. That said, even with a CE in hand, an agency must still ponder whether there are “extraordinary circumstances” that could make a particular project more impactful than its peers.

The Case of the Inyo National Forest Drilling Project

So, what’s the buzz with this Ninth Circuit case? It’s about a company that had its eyes on some potential gold beneath the surface of the Inyo National Forest. The plan had two stages: drilling to see if the gold was there and then fixing up the land afterwards. The need for restoration implies that the drilling might rough up the landscape a bit, necessitating some TLC to avoid lasting damage. The drilling part was covered by a CE—let’s call it CE #1—but there was a catch. CE #1 was only good for mineral exploration that wrapped up within a year. Since the project, including restoration, would take longer, the Forest Service brought out a different CE—dubbed CE #2—that covered habitat restoration for the extended timeline. (They only thought of using CE #2 after the public had their say.) In the end, the Forest Service figured the project wouldn’t really hurt surface or groundwater and wouldn’t bother the endangered sage grouse much, so no extraordinary circumstances warranted a deeper environmental dive.

The Legal Conundrum: Splitting Projects and Harmless Errors

The Ninth Circuit was left to tackle a couple of head-scratchers: (1) Can an agency use multiple CEs to dodge a full environmental review for a single project? And (2) Is skipping a required environmental review a no-big-deal kind of mistake?

The majority leaned on Forest Service rules to say that mixing and matching CEs for one project is a no-go. What they missed, though, is that NEPA itself now echoes that sentiment, thanks to the 2023 amendments. NEPA’s new language is crystal clear: an action—a combo of drilling and fixing up the land—doesn’t fit neatly into a single CE.

And really, it makes sense not to blend CEs. Just because each part of a project might not individually make a huge environmental wave doesn’t mean the total effect is trivial. Courts have long frowned upon agencies trying to sidestep NEPA by slicing projects into bite-sized pieces for separate reviews. Plus, projects that might need several CEs are usually not the simple, routine stuff CEs were made for. This particular project drew over 1500 comments, which suggests it’s not exactly run-of-the-mill.

The “Harmless Error” Debate

But what about this idea of a “harmless error”? Groups like the Sierra Club argued that the project could indeed have significant impacts. The agency heard them out but ultimately wasn’t convinced. If the agency’s conclusions would’ve been the same even with an environmental assessment, is there really an issue?

The majority ruled that skirting the NEPA process was a major no-no and couldn’t be shrugged off as harmless. The dissent, though, believed the Forest Service had given the environmental concerns as thorough a look as an assessment would have. (Which begs the question: Why not just do the assessment?) The dissent felt any procedural slip-up was no biggie.

However, there are nuances between what the agency did and what an environmental assessment entails that could matter. For instance, the Service did ask for public input, but an assessment demands a more robust public participation. It’s not just about asking if folks agree with using a CE; it’s about involving them, along with governments at various levels, in crafting the assessment itself.

This distinction is key. A more comprehensive process might have unearthed additional evidence or swayed the agency’s conclusions. When people are asked to weigh in on whether a project’s environmental impacts are worth looking into at all, they might not provide as much detail as they would if the agency were actively investigating those impacts.

Moreover, an environmental assessment would have needed a Finding of No Significant Impact (FONSI), which also would’ve considered alternatives to the proposed action. None of the judges pointed to any such discussion by the agency. We’re left in the dark about whether there were less environmentally sensitive sites available. An assessment would have required the agency to explore that angle.

The Bottom Line on Categorical Exclusions

The whole point of CEs is to fast-track decisions when environmental impacts aren’t really in question. Yet, in this case, the process seemed to drag on as long as a full-blown assessment would have. Interestingly, the agency initially thought an assessment was necessary, but a complaint from the company led to a swift about-face. (Coincidence with the Trump Administration’s stance, perhaps?) It might have been wiser for the agency to stick to its guns rather than hurrying to greenlight the mining project.

So there you have it—a deep dive into a case that highlights the intricate dance between environmental policy, legal interpretations, and the practicalities of safeguarding our natural world. Stay tuned for how this all plays out in the ongoing balancing act of progress and preservation.

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