§1.6 IS THE EIS ADEQUATE?
The CEQ regulations state that the primary purpose of the EIS is to serve as an action-forcing device to infuse the goals and policies of NEPA into the actions of federal agencies. 40 C.F.R. §1502.1. As the courts have stated, the purpose of an EIS is twofold: [I]t provides the decision-maker with sufficiently detailed information to decide whether to proceed on a project in light of potential environmental consequences and it furnishes the public with relevant environmental information. Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir. 1985). It is an environmental full disclosure law that insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug. Sierra Club v. U.S. Army Corps of Engrs, 772 F.2d 1043, 1049 (2d Cir. 1985); 40 C.F.R. §1502.1. NEPA does not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it require[s] only that the agency take a hard look at the environmental consequences before taking a major action. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 462 U.S. 87, 97, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983) (citation omitted); N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (faulty reliance on stale and improperly updated data does not constitute the hard look required under NEPA).
The CEQ regulations establish the required format for each EIS. 40 C.F.R. §§1502.10-.18. An EIS should be written in plain language. 40 C.F.R. §1502.8. The EIS must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding environmental benefits and detriments to be expected from a program or project; it must provide a record upon which the decision maker could arrive at an informed decision. Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir. 1973). An EIS should avoid vague, conclusory statements and unsubstantiated claims. Marble Mtn. Audubon Socy v. Rice, 914 F.2d 179 (9th Cir. 1990) (FEIS inadequate because conclusion made without study or supporting documentation). The duty of full disclosure must be observed to the fullest extent possible. Calvert Cliffs Coord. Comm., Inc. v. U.S. Atomic Energy Commn, 449 F.2d 1109, 1114 (D.C. Cir. 1971). An EIS should avoid bias toward the proposed major action that would tend to narrow the scope of review. Or. Natural Res. Council v. Marsh, 52 F.3d 1485 (9th Cir. 1995) (scope of cumulative impacts analysis should have included water issues raised during public comment period). In general, the Ninth Circuit will use a rule of reason standard to determine the adequacy of an EIS. League of Wilderness DefendersBlue Mtns. Biodiv. Project v. Allen, 615 F.3d 1122 (9th Cir. 2010) (whether EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences).
(1) Reviewing whether to prepare an EIS
In early NEPA cases, the circuit courts disagreed regarding what standard of review applied to an agencys decision not to prepare an EIS for a proposed action. In 1989, the Supreme Court required the circuits to reexamine their standard of review when it held that the Administrative Procedure Acts arbitrary and capricious standard should be used by courts reviewing an agencys decision not to prepare a supplemental EIS. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989). Although in Marsh the Court reviewed an agencys decision not to supplement an existing EIS, the Courts reasoning appears to be equally apposite to cases that present challenges to an agencys decision not to prepare an initial EIS. Greenpeace Action v. Franklin, 14 F.3d 1324, 1330 (9th Cir. 1992) (joining other circuits that, under Marsh, have switched from a reasonableness test to the arbitrary and capricious standard of review of a fact-bound challenge to an agencys determination not to prepare an initial EIS); see also Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972-73 (10th Cir. 1992) (en banc), cert. denied, 506 U.S. 817 (1992); N. Buckhead Civic Assn v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990); North Carolina v. Fed. Aviation Admin., 957 F.2d 1125 (4th Cir. 1992); Goos v. I.C.C., 911 F.2d 1283, 1291-92 (8th Cir. 1990); Sabine River Auth. v. Dept of Interior, 951 F.2d 669, 678-79 (5th Cir. 1992), cert. denied, 506 U.S. 823 (1992).
In Marsh, the Court held that when review of the determination not to prepare an EIS involves primarily issues of fact, i.e., when analysis of the relevant information requires a high level of technical expertise, the court must defer to the informed discretion of the responsible federal agencies. Marsh, 490 U.S. at 377-78. This deferential standard of review requires the agency to develop a fully reviewable administrative record that will support the decision not to prepare an EIS. Id. at 378 (citations omitted).
However, when challenges to the decision not to prepare an EIS involve primarily legal issues, as opposed to factual issues, the Ninth Circuit continues to apply the less-deferential reasonableness standard of review. E.g., High Sierra Hikers Assn v. Blackwell, 390 F.3d 630 (9th Cir. 2004) (reasonableness standard applies to decision that EIS is not required without first preparing EA for issuance of special use permits); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998) (reasonableness standard applies to challenge to Forest Services threshold decision that certain activities are not subject to NEPA); Alaska Wilderness Rec. & Tourism Assn v. Morrison, 67 F.3d 723 (9th Cir. 1995) (whether cancellation of contract was a circumstance requiring preparation of supplemental EIS); Seattle Cmty. Council Fedn v. Fed. Aviation Admin., 961 F.2d 829, 832 (9th Cir. 1992) (agencys decision not to prepare an EIS considered unreasonable only if agency fails to supply a convincing statement of reasons why potential effects are insignificant). But see Kern v. U.S. Bureau of Reclam., 284 F.3d 1062, 1070 (9th Cir. 2002) (agencys decision not to prepare an EIS once that agency has prepared an EA is reviewed for abuse of discretion, and will be set aside only if it is arbitrary and capricious).
(2) Adequacy of the EIS
Issues related to EIS adequacy are discussed below.
(a) Scope
Under certain circumstances, CEQ regulations require that related proposals and actions be discussed together in one EIS. See 40 C.F.R. §1508.25.
Programmatic EIS. In certain circumstances, an agency may develop an EIS, called a programmatic EIS, that considers a number of related actions. The CEQ regulations state that [p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single [EIS]. 40 C.F.R. §1502.4(a); 40 C.F.R. §1508.18(b)(3) (a major federal action includes [a]doption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive). The CEQ regulations also indicate that an EIS may be prepared on broad Federal actions. 40 C.F.R. §1502.4(b). These actions may be evaluated in one of the following ways:
(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.
(2) Generically, including actions which have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter.
(3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment.
40 C.F.R. §1502.4(c). The CEQ regulations also require an EIS to include connected, cumulative, and similar actions. 40 C.F.R. §1508.25(a); see Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 1001 (9th Cir. 2004) (finding EAs inadequate when programmatic EIS was needed to evaluate actions that are adjacent to each other in the same watershed; are to be harvested under an identical silvicultural prescription; and are supervised by the same personnel); Churchill Cnty. v. Norton, 276 F.3d 1060 (9th Cir. 2001) (no programmatic EIS even though there appeared to be cumulative impacts associated with water allocation from two rivers), cert. denied, 537 U.S. 822 (2002).
The Supreme Court has found that a programmatic EIS must be prepared on an entire federal programrather than merely on particular projects undertaken pursuant to a programonly if the individual projects are integrated into an overall plan or otherwise interrelated. Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976) (concluding that a programmatic EIS was not required for coal leasing in the Northern Great Plains region because there was no regional plan or program that constituted a proposal for action under NEPA, but merely a series of unrelated leases); see also Envtl. Def. Fund, Inc. v. Higginson, 655 F.2d 1244 (D.C. Cir. 1981) (no programmatic EIS required for federal water projects in Colorado River basin); Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1976) (no programmatic EIS required for Bonneville Power Administrations contract to supply electric power to proposed aluminum plant because no regional plan); Found. on Econ. Trends v. Lyng, 817 F.2d 882 (D.C. Cir. 1987) (USDA animal productivity research not interrelated or interdependent enough to require programmatic EIS); Natl Wildlife Fedn v. Coston, 773 F.2d 1513 (9th Cir. 1985) (Forest Service road-building program merely funds actions already proposed and thus is not substantive program requiring programmatic EIS); Native...
