- In a rare move, the Ninth Circuit Court of Appeals published two opinions about subjects that are hardly ever discussed in the court's published National Environmental Policy Act (NEPA) decisions. For the first time in more than three decades, the court examined impacts to an old-growth redwood forest, and for the first time since 2016, the court examined indirect (downstream) carbon emissions.
- In Bair v. California Department of Transportation, the Ninth Circuit reversed a lower court decision that held the California Department of Transportation (Caltrans) failed to adequately study impacts of a roadway-widening project on an old-growth redwood forest. The Ninth Circuit emphasized that the lower court's disagreement with Caltrans' findings "does not constitute a NEPA violation" because Caltrans adequately considered all relevant evidence regarding potential environmental impacts.
- In Center for Biological Diversity v. Bernhardt, the Ninth Circuit held that the Bureau of Ocean Energy Management did not provide an adequate analysis of the environmental consequences of an oil drilling project. The Ninth Circuit criticized the Bureau for providing an "implausible" analysis that concluded the project's approval would lead to fewer global carbon emissions than not approving the project.
Since 1970, NEPA has required public agencies to disclose the environmental impacts of certain projects that affect environmental resources. When those disclosures are challenged in court, judges generally defer to the agency's findings unless the findings are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Courts apply a rule known as the "hard look doctrine," where an agency's actions are considered to be arbitrary and capricious if the agency failed to take a hard look at the consequences of its actions, based on a consideration of all relevant evidence. While courts are required to provide a "searching and careful" analysis of "whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," a court "cannot substitute [its] own judgment for that of the [agency]." See Ocean Advocs. v. U.S. Army Corps of Eng'rs (9th Cir. 2005) 402 F.3d 846, 858-859. Courts will "uphold a decision 'of less than ideal clarity if the agency's path may be reasonably discerned,' but [courts] cannot 'supply a reasoned basis for the agency's action that the agency itself has not given.'" See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (1983) 463 U.S. 29, 43.
For the first time since its 1988 decision in Sierra Club v. U.S. Forest Service (9th Cir. 1988) 843 F.2d 1190, the Ninth Circuit has published a new decision that applies the hard look doctrine in a case about impacts to an old-growth redwood forest. Specifically, in Bair v. California Department of Transportation (9th Cir. 2020) 982 F.3d 569, the court held that Caltrans satisfied the "hard look" requirement because Caltrans findings were supported by a detailed arborist's report. The Bair decision provides crucial guidance about the types of expert reports that are needed to support NEPA analyses for impacts to redwoods.
In a separately published decision, Center for Biological Diversity v. Bernhardt (9th Cir. 2020) 982 F.3d 723, the Ninth Circuit examined indirect "downstream" carbon emissions associated with the construction of a new oil extraction project in Alaska (e.g., emissions from transporting and storing oil). Bernhardt was the first NEPA case to examine indirect carbon emissions since the court's 2016 opinion in Protect Our Communities Foundation v. Jewell (9th Cir. 2016) 825 F.3d 571. In Bernhardt, the Bureau of Ocean Energy Management concluded that constructing an oil extraction facility would lead to fewer total carbon emissions than an alternative future outcome where the project is not constructed. According to the Bureau, without the project, oil would need to be sourced from foreign countries with weaker environmental regulations, where the transportation and storage of oil would result in increased total carbon emissions. However, the Ninth Circuit concluded that the Bureau's analysis was flawed and failed to comply with the hard look doctrine because construction of the project would lead to a greater supply of oil in the market, which would in turn lower global oil prices and incentivize increased oil consumption. The Bernhardt decision will provide important guidance for structuring future NEPA analyses of indirect carbon emissions for oil extraction...
