![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
The National Environmental Policy Act (NEPA), 42 U.S.C.S. §§ 4321 through 4370f, requires that federal agencies take a "hard look" at the environmental consequences of their actions. An agency must prepare NEPA documents before any irreversible and irretrievable commitment of resources is made. Generally, the agency is required to prepare an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) before committing resources to an action. A federal agency may adopt a "categorical exclusion" for a category of actions which do not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. 1508.4 (2001). Generally, if an action falls within an adopted categorical exclusion the agency is not required to prepare an EIS or an EA. However, an agency adopting a categorical exclusion must provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
In 1969, there was a terrible oil spoil at the shore of Summerland, California that spread oil over eight hundred square miles of ocean, with the winds making the damage reach far into the Santa Barbara harbor and killing thousands of sea birds, seals, and other marine mammals.
The United States granted "suspensions" of 36 oil leases offshore of central California pursuant to 43 U.S.C. § 1334(a)(1). The purpose of the lease suspensions was to extend the lives of the leases and to allow the lessees to "facilitate proper development of the leases." Without the suspensions, the leases would have expired and the lessees would have lost all production rights because the lessees had not begun production in paying quantities and the term of the leases had elapsed. California" asserted authority to review the lease suspensions for consistency with California's Coastal Management Program pursuant to the Coastal Zone Management Act. California also objected to the lease suspensions on grounds that the United States failed to perform an environmental review of the lease suspensions pursuant to the National Environmental Policy Act ("NEPA"). The United States refused to submit the lease suspensions to California for review, claiming that lease suspensions are not subject to review by California under the terms of the Coastal Zone Management Act. The United States also asserted that the lease suspensions were categorically excluded from environmental review pursuant to NEPA.
California filed suit in federal district court seeking to enjoin the lease suspensions until it was afforded the opportunity to review them. California also sought to force the United States to prepare an Environmental Impact Statement ("EIS") before approving the lease suspensions. The district court held that the approval of the lease suspensions by the United States was subject to consistency review by California pursuant to 16 U.S.C. § 1456(c)(1)(A). The district court also held that the United States did not adequately document its reliance on the claimed categorical exclusion pursuant to NEPA and ordered the United States to provide an explanation for the applicability of the categorical exclusion to these lease suspensions. The United States and the Oil Companies timely appealed.
Did the district court err in holding that the United States did not adequately document its reliance on the claimed categorical exclusion pursuant to NEPA?
The United States did not point to any documentation in the record that would suggest that it made a categorical exclusion determination at the time the lease suspensions were approved. Instead it argued that the lease suspensions are indeed categorically exempt and that none of the exceptions applies. The United States argued that this Court can rely on the existing record to determine that the lease suspensions are categorically exempt because it was evident from the record that the duly-promulgated categorical exclusion for lease suspensions applies here. The United States cited as precedent for such a review procedure the decision of this Court in Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996). Bicycle Trails, however, severely undermined the United States' argument. In Bicycle Trails the National Park Service relied on a categorical exclusion to exclude promulgation of rules governing bicycle use from NEPA review. The appellate court upheld the action of the Park Service as a proper invocation of the categorical exclusion. However, the Park Service made specific findings of fact and systematically applied its regulations for categorical exclusions to those facts in a Record of Decision contemporaneously published in the Federal Register. Here, the United States pointed to no record of decision invoking a categorical exclusion, even in a cursory fashion. Bicycle Trails summarized the requirement for an agency to apply a categorical exclusion: “An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious." It is difficult for a reviewing court to determine if the application of an exclusion is arbitrary and capricious where there is no contemporaneous documentation to show that the agency considered the environmental consequences of its action and decided to apply a categorical exclusion to the facts of a particular decision. Post hoc invocation of a categorical exclusion did not provide assurance that the agency actually considered the environmental effects of its action before the decision was made. District courts in the circuit have set aside agency decisions in similar circumstances on this reasoning. In many instances, a brief statement that a categorical exclusion was being invoked will suffice. Here, concern for adequate justification of the categorical exclusion was heightened because there was substantial evidence in the record that exceptions to the categorical exclusion are applicable. At the very least there was substantial evidence in the record that exceptions to the categorical exclusion may apply, and the fact that the exceptions may apply is all that was required to prohibit use of the categorical exclusion. Where there is substantial evidence in the record that exceptions to the categorical exclusion may apply, the agency must at the very least explain why the action does not fall within one of the exceptions. In Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986), this Court held that a federal agency improperly relied on a categorical exclusion where the record revealed "the arguable existence of public controversy based on potential environmental consequences." In Jones, there were public comments in the record opposing the issuance of a permit to capture killer whales, including comments relating to the environmental effects of capturing whales. Jones held that the agency's invocation of a categorical exclusion was improper because the agency did not explain why an exception for actions involving public controversy based on potential environmental effects had no application. There were subtle differences in wording between the exception in Jones and Exception 2.3 here. However, the existence of public controversy in this case was beyond doubt and the principle applied in Jones was fully applicable here.